Decided: May 17, 1935.
SYLVIA AXFORD, PLAINTIFF-RESPONDENT,
PURITY BAKERIES CORPORATION, A CORPORATION, DEFENDANT-APPELLANT; SYLVIA AXFORD, EXECUTRIX OF THE ESTATE OF JAMES AXFORD, DECEASED, PLAINTIFF-RESPONDENT, V. PURITY BAKERIES CORPORATION, A CORPORATION, DEFENDANT-APPELLANT
For the defendant-appellant, Jacob Schneider.
For the plaintiff-respondent, Edward R. McGlynn.
[115 NJL Page 166]
The opinion of the court was delivered by
BODINE, J. The defendant appeals from two judgments in actions tried before a court and jury. The trial court followed the opinion of this court in Axford v. Purity Bakeries Corp., 112 N.J.L. 594, submitting to the jury the
[115 NJL Page 167]
question whether, at the time of the accident, the servant had so far deviated from his employment that the relation of master and servant had ceased to exist. The cases before us were a new trial of the cases above referred to made necessary because in those cases the court had directed a verdict for the defendant. It is conceded that the facts at the new trial were identical, but for one circumstance, with those established at the earlier trial. The only added proof was that the truck in question bore the sign "No Riders." This inscription had been placed upon the truck about six months before the accident.
"Where a servant is acting within the scope of his employment, and by his negligence causes injury to a third party, the master will be responsible, although the servant's act was contrary to his master's orders." Klitch v. Betts, 89 N.J.L. 348. Also 39 C.J. 1285, and cases there collected.
Manifestly, the trial court in following the law of the case as laid down by this court committed no error. The circumstance that the driver was forbidden to take riders would not, as a matter of law, make him less on his master's business. The question of deviation on the facts presented was for the jury and the court so charged.
The judgments are affirmed.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.
For reversal -- None.