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Isherwood v. Douglas

Decided: March 17, 1955.

ROBERT D. ISHERWOOD AND MIRIAM Y. ISHERWOOD, PLAINTIFFS-RESPONDENTS,
v.
JAMES DOUGLAS, JOHN ACKER AND DOCKERY-SULLIVAN CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS. MARION DOUGLAS AND JAMES DOUGLAS, PLAINTIFFS-RESPONDENTS, V. JOHN C. ACKER AND DOCKERY-SULLIVAN CORPORATION, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-APPELLANTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

These are appeals from judgments entered upon jury verdicts in two consolidated actions arising out of a single automobile accident and tried together. There was a collision in the early morning of January 31, 1953 between two cars at the intersection of Route 23 and Packanack Road in Wayne Township. The Douglas car was in the intersection, proceeding westerly on Packanack Road when it was struck broadside by the Acker car, driving northerly on Route 23. The Isherwoods and Marion Douglas were passengers in the Douglas car. Acker was driving alone. His car was a brand new Lincoln owned by the defendant Dockery-Sullivan Corporation, Lincoln-Mercury dealers. Acker was a salesman-employee of the company, on his way to his home in Wayne Township that night with the car, allegedly for the purpose of having it available to show a prospective customer in Newark at 8:30 A.M. in the morning. His authorization for possession of the car for that or any other purpose at the time was in sharp factual dispute at the trial.

At the conclusion of the trial motions for dismissal on behalf of each of the defendants were denied. Objections were noted by the defendant Douglas to certain portions of

the charge of the court bearing upon his duty. In the Isherwood action the jury returned a verdict in favor of Robert D. Isherwood and Miriam Y. Isherwood in the respective sums of $2,000 and $9,000 against all the defendants therein named, and in the Douglas action it found in favor of Marion Douglas against the defendants therein for $4,000.

We have here to deal with the following appeals:

(1) By the Dockery-Sullivan Corporation as to the verdicts in both cases on the grounds: (a) that Acker should have been found as a matter of law not to have been occupied in the course of his employment by the company at the time of the accident; (b) that the jury verdicts against it were clearly the result of prejudice, passion or mistake and contrary to the weight of evidence; and (c) that the charge of the trial court in effect called for a verdict against it in both cases;

(2) By Douglas on the ground that the charge of the trial court to the jury was erroneously prejudicial in respect to its admeasurement of his duty in the circumstances.

1. APPEAL OF DOCKERY-SULLIVAN CORPORATION

The principal asserted grievance of this defendant, that first above noted, is founded upon the fact that after taking the car from its place of storage in Verona on the evening of January 30, the defendant Acker first drove it to Newark to visit a newly opened tavern where he tarried several hours and had a few drinks before proceeding homeward about midnight. From this premise Dockery-Sullivan Corporation erects the conclusion that "reasonable minds could reach no conclusion other than that at the time [of this accident] Acker was not in the course of his employment or the scope of his authority as a salesman for the defendant Dockery-Sullivan Corporation but was acting for his own purpose and enjoyment." There is no suggestion that Acker's experience at the tavern had impaired his driving capacity. The narrow issue presented is as to whether the prior deviation to the

tavern from the authorized course homeward from the point of appropriation of the car had the effect in law of taking the agent out of the course of employment on behalf of his master and keeping him out until he finally arrived at home. For that is the logical thrust of the argument under examination. Acker was almost home when the accident occurred and had, on his return journey, passed the point in Verona from which he had taken the car earlier.

While Acker's authority to take the car in the first place was in contention at the trial, the trial court found the evidence relevant to that issue such as to require its submission to the jury. This course appears to us to have been right and since no serious argument contra is made by ...


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