Appeal from the District Court of the United States for the District of New Jersey; Thomas Glynn Walker, Judge.
Before MARIS, CLARK, and JONES, Circuit Judges.
The question now before us on appeal arose at the end of the trial below. For that reason probably the argument thereon does not seem to have been addressed squarely to what we believe to be the issue. Possibly this oblique start affected the later presentation because we find in the briefs and argument here somewhat the same emphasis. The parties agree as to the facts. The plaintiff is the widow of a man who was run over and killed by the milk delivery truck of the defendant's assured. The accident happened in Atlantic City when the truck was being driven "past" its terminal garage to the house of its driver.*fn1 The driver testified that he "was supposed to take it (the truck) to the garage".*fn2 Instead of doing so, he went on in order to ask his wife to come for him after he had serviced his truck at the garage and so save him an eighteen block walk. The driver's employer, a dairy company, carried what might be called the usual automobile accident policy*fn3 issued by the defendant company. These policies contain a clause conforming them to the local motor vehicle responsibility law.*fn4 This clause reads: "Any insurance provided by this policy for bodily injury liability or property damage liability shall conform to the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising from the use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy * * * ." Exhibit P 1, Section 13.
The provisions of the policy attempting to define or delimit its coverage are in this language:
"The unqualified word 'insured' wherever used in Coverages A and B and in other parts of this policy, when applicable to these coverages, includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the automobile is 'pleasure and business' or 'commercial', each as defined herein, and provided further that the actual use is with the permission of the named insured. * * * " Exhibit P 1, Paragraph 3.
"(a) The term 'pleasure and business' is defined as personal, pleasure, family and business use. (b) The term 'commercial' is defined as the transportation or delivery of goods, merchandise or other materials, and uses incidental thereto, in direct connection with the named insured's business occupation as expressed in Item 1. (c) Use of the automobile for the purposes stated includes the loading and unloading thereof." Exhibit P 1, Section 2.
The advent of the automobile added fresh fuel to the flames of the conflict between the at fault and at peril schools of tort philosophy.At first the "devil wagon"*fn5 joined the horse and buggy in the negligence fold.*fn6 Soon its greater resemblance to a reservoir, a forest fire, or a wild animal*fn7 became apparent at least to the laity.We say at least to the laity because the practicing profession clung to the tradition. The more advanced thinkers outside thereof were quite willing to recognize reality and declare for absolute liability.*fn8 A slightly less enterprising group balked at absolute liability but insisted upon absolute insurance.*fn9 Bringing up the rear of those who felt "something should be done about sudden death on the highway" were the proponents of the safety responsibility laws.*fn10 They adhered to fault but agreed that fault should be paid for. So the likelihood of its occurrence was made the test of the latter's guaranty. As one might expect, this middle of the road appealed to the majority of the states - all, in fact, except Massachusetts.*fn11
In its drafting, this type of legislation evinces an approach that endanges even its limited purpose. The argument in this very case centers around the gap so created.The Uniform Law Commissioners, more expert and possibly more unselfish than the automobile and insurance associations, submitted an act written around the operation rather than the ownership of the automobile.*fn12 Up to 1940 this act had been adopted only in Pennsylvania.*fn13 In their prefatory note the Commissioners summarize the advantages of their form of Act saying:
"The draft here presented seeks to eliminate irresponsible operators largely through control of operators' licenses and by requiring operators to carry insurance covering any accident in which they may be involved while driving any automobile. This, in our judgment, will be much more effective than a requirement that under certain circumstances the owner of automobiles must carry insurance covering the motor vehicles owned by him. This later type of insurance is of no avail when an operator is driving for his own purposes a car not owned by him. On the other hand a policy covering the operator, regardless of the ownership of the car which he is operating, provides full protection, within the limits of the policy, in the event of any accident occurring while the insured is at the wheel. * * *
"Likewise, if it is proper, as we believe it is, to require an operator to carry insurance, if he has had, in any year, more than two accidents involving substantial damages, it does not meet the situation to require him to insure only such cars as he owns. Adequate protection can be obtained only by requiring him to be insured against liability arising out of his operation of a motor vehicle no matter whose motor vehicle it may be." 11 Uniform Laws Annotated p. 127.
The defense in the case at bar, as the facts themselves suggest, is the ancient "frolic of his own". In the respondeat superior doctrine of agency, we have the same wavering and the same cleavage we observed in the law of torts. The theory that he who starts the machinery should foot the bill for whatever happens is qualified by some idea of control over the human element. So we struggle with the end-less refinements of the scope of his master's business and a way, even if a poor way, of accomplishing the same.These refinements have been criticized: "In view of the suggested justification for respondeat superior, it may be argued that it is a matter of common knowledge that servants employed to drive automobiles frequently do make short excursions on errands of their own which they would not have made but for the fact that they had been sent on an errand for the master. Such conduct on the part of servants must, therefore, be regarded as a probable result of employing servants to drive automobiles: just as probable as that they will drive at a reckless speed. Accordingly the undertaking of an enterprise involving the employment of chauffes must necessarily expose third parties to a risk of injury from such excursions as well as expressly authorized acts and should therefore, be borne by the enterprise which caused the risk. Had the courts taken this view of the problem, many of the subtle distinctions between 'frolics' and 'detours' would not exist." Smith, Frolic and Detour, 23 Columbia Law Review 444, 716, 718 and 724.*fn14
They still prevail in New Jersey, however, and appellant's counsel is correct in his contention that the facts of the principal case place the driver's conduct clearly outside the scope of his employment at the time of the accident. The cases are collected and annotated in Owners Liability for Injury by Automobile While Being Used By a Servant for His Own Pleasure Or Business, 22 A.L.R. 1397; 45 A.L.R. 477; 68 A.L.R. 1051; 80 A.L.R. 725; 122 A.L.R. 858.
If there had been no financial responsibility law and no insurance there could have been no recovery. As it is, we believe the learned district judge is correct in his conclusion to the contrary. The question is one of statutory construction. We are not, as we think, assisted by most of the New Jersey cases relied on. They hold that a breach of warranty by the assured is of no avail under the New Jersey Act.*fn15 That holding is based upon the word "absolute" in Section 10 of the Act.*fn16 The courts say that this abrogates the ordinary rule of defenses in a derivative action.The decisions have been criticized*fn17 and defended.*fn18 We quite agree with counsel for the appellant that these cases are not controlling. At most they foreshadow a policy. The assured's ...