Summary
In Smith v Fonda (265 App. Div. 977, app dsmd 294 N.Y. 655), the plaintiff was hit by an automobile driven by the defendant Fonda, an employee of the defendant Shadinger Redick Company, Inc. Fonda had been driving home from work.
Summary of this case from Nero v. Ris Paper Co.Opinion
December 29, 1942.
Appeal from Schenectady County Supreme Court.
The action was brought against defendant corporation and Harold Fonda, an employee of the corporation, for personal injuries. Plaintiff, while walking on a street known as Nott Terrace in the city of Schenectady, New York, was struck by an automobile owned and operated by the defendant Fonda. The latter was an employee of the defendant corporation and used his car to deliver merchandise in Albany, Troy, Watervliet, and occasionally he carried supplies to Schenectady. He lived at Scotia and drove back and forth to work in the automobile involved in the accident. He worked on a forty-hour basis and usually finished his workday at 5:30 in the afternoon. On the day in question he had finished his work at 5:30 P.M., and was on his way home by way of Schenectady. He carried no merchandise for the defendant corporation and was engaged in no errand at the time for it. He had deviated from his usual route home to take a fellow employee to the latter's house in Schenectady, but this was a purely voluntary act on his part. The foregoing facts are sustained by the overwhelming weight of the testimony; in fact there is no testimony to the contrary. At the time of the accident the relationship of master and servant between the defendant corporation and the defendant Fonda did not exist. The views expressed in Burdo v. Metropolitan Life Insurance Company ( 254 App. Div. 26; affd., 279 N.Y. 648) are not applicable here since the facts are clearly distinguishable. Judgment against the defendant-appellant Shadinger Redick Company is reversed on the law and the complaint dismissed as to it with costs. Hill, P.J., Crapser, Bliss, Heffernan and Foster, JJ., concur.