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Mistretta v. Docterman

Decided: October 17, 1932.


On appeal from the Supreme Court.

For the plaintiff-respondent, Joseph F. A. Rubacky and Jack Rinzler.

For the defendant-appellant, Thomas McClellan and Kellogg & Chance.


The opinion of the court was delivered by

WELLS, J. This is an appeal from a judgment entered in favor of the plaintiff upon the verdict of a jury in the Passaic Circuit of the Supreme Court. The plaintiff-respondent brought the suit against the defendants for injuries alleged to have been sustained as the result of being struck by an automobile owned by the defendant Thomas McClellan and driven by the defendant George Docterman. The jury rendered a verdict against both defendants and McClellan, the owner, alone appeals.

There was testimony tending to show that on July 18th, 1930, the plaintiff was walking across Summer street, Passaic, from the northerly to the southerly side at or near the Erie railroad grade crossing between Main street and Central avenue, when he was struck by an automobile traveling in an easterly direction on Summer street, about dark, at a rapid rate without lights and without giving any warning of its approach. The driver failed to stop. He speeded on to Central avenue, the next intersecting street, where he turned southerly and disappeared. There was evidence from which the jury could reasonably infer that the car which struck plaintiff was a blue Chevrolet coupe. The defendant McClellan was the owner of a blue Chevrolet coupe, which on the evening of the accident was in the garage and in the possession of the defendant Docterman, a garage man, for the purpose of being repaired. The plaintiff alleges that it was this automobile which ran into him and insists that he clearly established that fact at the trial, and that the trial court properly submitted the case to the jury. Appellant denies that his automobile was in an accident that night and denies that there was sufficient evidence of the identity of his car with the car which was in the accident to justify the trial judge in submitting the case to the jury.

The grounds of appeal are that the trial judge erred in denying appellant's motion for a nonsuit and for direction of a verdict. The motions for nonsuit and for a direction of a verdict as originally made were based upon two grounds, first, that there was no testimony in the case that Docterman was the agent or servant of McClellan; second, that there was no evidence that the automobile driven by the defendant Docterman, struck or came in contact with the plaintiff.

There is no difficulty about the first question. As a matter of fact, the appellant practically abandoned this in restating his motions and has not stressed it in his brief. Docterman testified that McClellan telephoned him about nine-fifteen on the evening of July 18th, 1930, and said that his Packard car "was broke down" and for Docterman to deliver to him the Chevrolet at the United Piece Dye Works at Lodi and

take the Packard back for repairs. Accordingly, Docterman finished the Chevrolet car and drove to Lodi to deliver it to McClellan as per McClellan's directions given to him over the telephone. McClellan did not deny this conversation. It is clear that Docterman was McClellan's agent.

The second question, however, presents more difficulty because of the fact that no witness of the accident directly identified the coupe as McClellan's car. It was described as a blue Chevrolet coupe and that description fitted McClellan's car. The testimony showed that Docterman, after finishing the repairs to the Chevrolet coupe stopped en route to Lodi and at or near the corner of Main and Summer streets, Passaic, picked up a Mrs. Edna VanHassel Petrie and proceeded easterly along Summer street across the Erie railroad crossing and turned to the right or south on Central avenue on his way to Lodi.

Max Glick, a witness produced by plaintiff, testified that he was sitting on his front porch and heard a bang near the tracks of the Erie railroad, looked up and saw a car coming down. It turned around the corner on Central avenue and speeded away. He went to the spot where he heard the bang and found the plaintiff. The car was a Chevrolet coupe. The plaintiff, himself, testified that he was attempting to cross Summer street at a point near the Erie railroad between Main street and Central avenue when he was struck by ...

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