On appeal from the First Judicial District Court of the county of Hudson.
For the defendant-appellant, Townsend & Doyle (Cyril J. Galvin, of counsel).
For the plaintiff-appellee, Alfred E. Modarelli.
Before Justices Trenchard, Parker and Perskie.
The opinion of the court was delivered by
TRENCHARD, J. This is an appeal by the defendant below from a judgment in favor of the plaintiff, rendered by the District Court judge sitting without a jury.
The plaintiff brought the action for damages sustained by him resulting from the negligence of the defendant's agent in operating an automobile owned by the defendant company.
The sole specification of error argued is that the court below erred in refusing to direct a verdict for the defendant, i.e., a
motion for judgment, on the ground that no issue of fact was presented upon the question whether or not, at the time of the accident, the driver of the defendant's car was operating it on his own behalf and on his own business and not on the business of the defendant or on its behalf.
We think an issue of fact was presented upon that question, and that therefore the motion was properly denied. The authorities principally relied upon by defendant-appellant are Evers v. Krouse, 70 N.J.L. 653; Okin v. Essex Sales Co., 103 Id. 217; affirmed, 104 Id. 181, and Wirth v. Gabry, 120 Id. 432; 200 A. 556. But we believe these authorities are not in point. The Evers case involved the use of the father's tool for mischievous purposes; in the Okin case the employe disobeyed his employer's instruction and deviated from the business he was expressly directed to pursue; in the Wirth case the driver was "on his own business and was acting solely for himself."
We think the testimony in the case at bar brings the case within the ruling of such decisions as Ferris v. McArdle, 92 N.J.L. 580; Dunne v. Hely, 104 Id. 84, and Bedell v. Mandel, 108 Id. 22.
The evidence in the case at bar tended to show that, at the time of the accident, the defendant's car was being driven by one Robinson, who was employed (with one other man), by the defendant company to take care of its garage, service station and show room at night. Among their other duties these men drove customers home and brought their cars back to the garage, and they, and they alone, were in full charge at night. The president of the defendant corporation, who was in active charge of its affairs, testified that Robinson was permitted to use the corporation's cars, if he had to, and that he did not have to get permission so to do, and that such was a standing order. The testimony further tended to show that Robinson, on the night in question, took the president's son (a customer) to the latter's home about twelve-thirty o'clock in one of the ...