On appeal from the New Jersey Supreme Court.
For the defendant-appellant, Aaron A. Melniker.
For the plaintiff-respondent, Edward Stover.
The opinion of the court was delivered by
KAYS, J. This is an appeal from a judgment entered in the New Jersey Supreme Court. The case was tried before Judge Ackerson and a jury at the Hudson Circuit.
The suit was brought under the Death act by Catherine Warsley, administratrix ad prosequendum of the estate of Paul Warsley, deceased, against the defendant, Gabriel Brtan, for damages sustained by reason of the death of the said Paul Warsley which death was caused, it was claimed, by the negligent operation of an automobile owned by the defendant. The suit was against Gabriel Brtan and his son, Joseph
Brtan. The jury rendered a verdict in favor of the plaintiff and against Gabriel Brtan, the father, and no verdict against Joseph Brtan, who, it was claimed, was operating the car at the time of the accident. From the judgment entered as a result thereof, the defendant appeals here on the sole ground that there was no proof of agency, that is, that there was no proof that the son at the time of the accident was acting as the agent of his father, Gabriel Brtan. The complaint contained three counts. The third count was against Gabriel Brtan alleging that he was the owner of the automobile and that Joseph, the driver, the other defendant, was engaged in and about the business of his father and was authorized by his father to drive the automobile and that the said automobile was driven in a negligent manner which caused the accident and the death of plaintiff's intestate. These allegations were denied by the answer. The plaintiff then served interrogatories directed to the defendants or their attorney which required answers to the following questions: First: Who was the owner of the automobile which struck plaintiff's intestate as alleged in the complaint? Second: At the time of said accident who drove the automobile? Fourth: Was said driver, at the time of the accident, engaged in the business of the owner of the car? Fifth: Did the driver at the time of the accident, set forth in the complaint, have the permission of the owner of the car to drive said car? Instead of answering the interrogatories above mentioned, defendants' attorney sent a letter to plaintiff's attorney as follows: "I have your 'interrogatories in the above matter, and note that the information that you request pertains to ownership and operation of the vehicle involved in the accident herein.
"If satisfactory to you, you make take this letter as an admission of ownership and operation, and thereby obviate the necessity of securing interrogatories.
"I trust this will be satisfactory to you."
This letter was signed by the attorney of the defendants and the said letter together with the interrogatories were admitted in evidence without objection. At the close of the case defendant moved for a nonsuit as to the defendant Gabriel Brtan on the ground that there was no evidence that
the defendant Joseph was the agent of the defendant Gabriel. The court denied this motion on the ground that the letter addressed to the attorney of the plaintiff by the attorney of the defendants was evidence of such agency and that it was a question for the jury to determine, in view of the evidence submitted by the defendants to the effect ...