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Fullmer v. Scott-Powell Dairies

Decided: May 15, 1933.

ALBERT J. FULLMER, BY HIS MOTHER AND NEXT FRIEND, FREDA C. FALTENBACHER, AND FREDA C. FALTENBACHER IN HER OWN RIGHT, PLAINTIFFS-APPELLEES,
v.
SCOTT-POWELL DAIRIES, INCORPORATED, FRANK F. GEORGE AND RICHARD C. GIDEON, TRADING AS GEORGE & GIDEON COMPANY, AND EDWARD CROSS AND ROMIE HAMPTON, DEFENDANTS, AND SCOTT-POWELL DAIRIES, INCORPORATED, AND ROMIE HAMPTON, APPELLANTS; WILLIAM KENNEDY, JR., BY AND THROUGH HIS FATHER AND NEXT FRIEND, WILLIAM KENNEDY, SR., AND WILLIAM KENNEDY, SR., IN HIS OWN RIGHT, PLAINTIFFS-APPELLEES, V. SCOTT-POWELL DAIRIES, INCORPORATED, FRANK F. GEORGE AND RICHARD C. GIDEON, TRADING AS GEORGE & GIDEON COMPANY, AND EDWARD CROSS AND ROMIE HAMPTON, DEFENDANTS, AND SCOTT-POWELL DAIRIES, INCORPORATED, AND ROMIE HAMPTON, APPELLANTS



On appeal from the Supreme Court.

For the defendants-appellants Scott-Powell Dairies, Incorporated and Romie Hampton, Horace G. Brown and French, Richards & Bradley (Floyd H. Bradley, of counsel).

For the plaintiffs-appellees, William A. E. King (Walter S. Keown, of counsel).

Heher

The opinion of the court was delivered by

HEHER, J. On September 1st, 1929, a motor truck of appellant Scott-Powell Dairies, Incorporated (hereinafter referred to as the Dairy Company), operated by Romie Hampton, one of its employes, and a truck of defendants Frank F. George and Richard C. Gideon, driven by defendant Edward Cross, collided at the intersection of Broadway and Cumberland

street, in the city of Gloucester. The infant plaintiffs Albert J. Fullmer and William Kennedy, Jr., who accompanied Hampton, were injured, and these actions were brought to recover the resulting damages. Negligence in the operation of both trucks was charged. The jury found appellants Scott-Powell Dairies, Incorporated, and Romie Hampton guilty of negligence, and assessed the damages. It exonerated their co-defendants George, Gideon and Cross. These appeals are from the judgments entered upon the verdicts in favor of plaintiffs.

The dairy company now contends that the trial judge erroneously denied their motion for a direction of a verdict in their favor. It is argued (1) that while Hampton was its employe, it was established as a matter of law that he was not acting within the scope of his employment at the time of the collision, and (2) that the infant plaintiffs did not have the status of invitees, and there was no breach of duty upon which to rest the claims for damages. Hampton assigns as error the denial of his motion for the withdrawal of a juror, upon the ground of improper and prejudicial references to the insurance coverage of the Dairy Company.

The Dairy Company admitted ownership of the truck operated by Hampton. The doctrine established in this state is that proof of defendant's ownership of an automobile driven on a public highway raises a presumption of fact that such automobile was in the possession of the defendant, through his servant, the driver, and this necessarily includes the presumption of fact that the servant in so driving the car was acting within the scope of his employment, for if he were not so acting the car would not in fact be in the possession of the owner, but would have been removed from such possession. Mahan v. Walker, 97 N.J.L. 304. It follows, as a corollary of this proposition, that unless, at the close of the case, the presumption that Hampton was, at the time, acting within the scope of his employment, had been overcome by uncontradicted proof to the contrary, the motion was properly denied. Missell v. Hayes, 86 N.J.L. 348; Mahan v. Walker, supra.

The Dairy Company maintained a milk distributing plant in the city of Gloucester, consisting of an ice box and storage house, situate at Fifth and Powell streets, and a stable and garage located at Third and Powell streets. Its delivery wagons were loaded at the ice box and storage house. They were horse-drawn vehicles, and were driven by the company's drivers from the stable to the storage house each morning, between midnight and one o'clock. The territory within a radius of twelve miles was served from this plant, and it was the duty of the foreman in charge to arrange for the timely departure of the delivery wagons to permit scheduled deliveries to the company's customers on its various delivery routes. The evidence tended to establish that, to facilitate the departure of these vehicles from the storage house on schedule, it was the practice of company employes, using one of its trucks for the purpose, to call at the homes of the drivers and convey them to the plant. On Sundays and holidays (this collision occurred on Sunday) deliveries were made earlier than usual.

The plant staff consisted of a superintendent, three foremen, a man in charge of the ice box, and an assistant. Hampton held the last named position, and in the temporary absence of the acting foreman, Knowles, he was in charge of the plant. On this occasion the superintendent was on vacation. Two of the foremen were temporarily substituting for absent route drivers, while the third was ill. It is claimed that Hampton did not have authority to operate the company's vehicles, and that in so doing he was not acting within the scope of his employment. True, he was not a licensed motor vehicle operator. Nevertheless, he was directed by Knowles, shortly before midnight, so he testified, to drive one of the company's trucks (a large Mack truck), containing ice, to Merchantville. He procured lanterns from the stable, placed them on the truck, and drove to the point designated for the delivery of the ...


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