On appeal from the Supreme Court.
For the appellant Oliver Surpless, Collins & Corbin.
For the appellant Stafford Miller, Howard F. McIntyre (Edward A. Markley, of counsel).
For the respondent, Arthur C. Dunn and John J. Breslin, Jr.
The opinion of the court was delivered by
LLOYD, J. These actions were to recover damages for personal injuries sustained by the plaintiff through a collision with an automobile owned by the defendant Surpless and
driven by the defendant Miller. The cases were tried together and resulted in verdicts in favor of the plaintiff against both defendants.
The defendants appeal and urge as grounds for reversal that the court should have declared a mistrial and that it should have directed verdicts in favor of the defendants.
It is contended that as to the defendant Surpless the evidence established that although the automobile involved in the action was owned by him and under the law was presumed to be under his control and operation, the uncontradicted proofs established that the car was out of his control, was not being used by or for him at the time of the accident, and that therefore the presumption of law was so clearly overthrown as to require the court to deal with the question as one of law and not as one of fact for the jury.
We think this contention is sound. It was established beyond question that Surpless at the time of the accident was in Canada and had been for several days, that the automobile was taken out of his garage by the defendant Miller for his own business purposes and without the knowledge of Surpless; such was the testimony of both Surpless and Miller and it was not impugned by any other proofs in the cause. While it was shown that Miller was at the time engaged to marry Surpless' daughter, that Surpless was later convicted before a justice of the peace of having permitted his car to be operated by an unlicensed driver, and that in a statement made by Surpless an admission to like effect was made, these proofs in nowise militated against the clear evidence that the car was at the time in the possession of Miller who was using it for his own, and exclusively his own, purposes. Hence no liability could be predicated on a relation of master and servant. Tischler v. Steinholtz, 99 N.J.L. 149; Okin v. Essex Sales Co., 103 Id. 217; affirmed, 104 Id. 181. Nor could the fact that the car was permitted by Surpless to be used by an unlicensed person, in the absence of proof that such unlicensed person was an incompetent driver, be made the basis of liability on the theory that he had permitted the use of his car by an unskillful operator. Muller v. West Jersey and Seashore Railroad Co., 99 Id. 186.
It is next argued that as to both defendants the motions should have been granted on the ground of contributory negligence in the plaintiff. We think this is not so. On this ...