Coyne v. Kennedy

Headnote

Negligence •— master and servant — motor vehicles — chauffeur using automobile for own purposes.

Coyne v. Kennedy, 183 App. Div. 937 , affirmed.

Appeal from, a judgment, entered April 8, 1918, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a .verdict and directing a dismissal of the complaint in an. action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. While crossing Fulton street in the borough of Brooklyn, plaintiff was struck by defendant’s automobile, receiving the injuries complained of. The automobile, which had been recently purchased, had been delivered to defendant the day before in charge of a chauffeur who was in the employ of the dealer. On the day of the accident defendant instructed said chauffeur to take the automobile to New York to obtain certain accessories and for repair and to return not later than one-thirty p. m. The chauffeur failed to follow the instructions but drove the automobile to various places and was returning after seven in the evening when the accident happened. The Appellate Division held that the chauffeur was not acting in the course of his employment. He did not deviate, but he abandoned .the master’s service. He took the automobile out for his own purposes; he was not engaged in defendant’s business, and was not acting

within the scope of his employment when the accident happened.