On appeal from the Supreme Court.
For the respondent, Carman C. Reina and John F. Ryan.
For the appellant, Foley & Francis (John M. Francis, of counsel).
The opinion of the court was delivered by
RAFFERTY, J. This appeal is by Endress Motors, Inc., a corporation, from judgments entered in favor of Fanny L. Cooper, individually and in her representative capacity, upon jury verdicts rendered in the Supreme Court, Union Circuit. Walter M. Vail, a co-defendant, does not appeal.
The action resulted from a motor vehicle accident occurring on the Pulaski Skyway at the South street ramp in Newark as the skyway runs from Jersey City to Newark.
Just before one o'clock in the morning of February 7th, 1937, defendant Vail, an automobile salesman employed by Endress Motors, Inc., of Plainfield, Union county, called at a tavern in North Plainfield, Somerset county, known as the Cooper Tavern, and which was operated or managed by decedent Cooper, husband of respondent. As a result of this visit, Cooper, his wife and three other persons went to a hotel in Hoboken in an automobile operated by Vail and owned by Endress Motors, Inc. At the hotel the party had some food and refreshments and on their return home in this automobile the accident happened at the point indicated and at about four A.M. Cooper died as a result of the injuries sustained in the accident. Mrs. Cooper sustained personal injuries.
The controversy on appeal involves the question of the proof of agency of Vail for Endress; alleged error of the trial court in its charge to the jury and alleged error of the trial court in refusing to make certain requested charges.
On the plaintiff's case it appeared that Vail was a sales agent for the Endress Company and had been in the employ of this company in that capacity for many years; that the car involved was owned by the Endress Company; carried dealer's plates and was assigned by that company to Vail for demonstration purposes; that Vail came to the tavern just before the closing hour and engaged in conversation with several of the patrons and with decedent Cooper and Mrs. Cooper, and that Vail suggested the trip to Hoboken. As to the conversation of Vail, plaintiff's witness Galuppo testified, "about all I heard is about the car being outside, a new car, and would like it very much if they would go out for a ride. To have a little refreshments of some sort, a sandwich, or
something like that." Harry Bowe, another of plaintiff's witnesses, stated, "Mr. Vail come to the back room and he said to Mrs. Cooper, 'I think I am going to sell your husband a car, and I am going to take you out for a demonstration,'" Forristel, another of plaintiff's witnesses, stated, "Mr. Vail was talking to Mr. Cooper in reference to taking a ride for a demonstration." Further, "he asked Mr. Cooper to take a ride at closing time for a demonstration in a new Buick car." Emma Bowe, another of plaintiff's witnesses, stated, "he [Vail] came to the table and he said, 'I think I sold your husband a car, and I have it out in the front, and I want to take you [Mrs. Cooper] out in a demonstration.'" It was shown also that on a previous occasion Vail had called at the tavern at about the same hour and had taken one Menthe to the same hotel in Hoboken for refreshments and had thereafter sold Menthe an automobile. As to this, Vail himself testified, under cross-examination, "Well, I really think that the trip to Hoboken interested Menthe, yes," and that the trip to Hoboken "had some effect" in eventually selling the automobile to Menthe. For the plaintiff it was shown also that upon leaving the tavern for Hoboken Vail drove to the Endress plant at Plainfield and refueled the automobile. This was not charged against Vail by the Endress Company but was within his permitted allowance of gasoline for that month. Upon his examination Vail denied inviting decedent Cooper and Mrs. Cooper for a demonstration ride and testified that he made no effort to sell an automobile to Cooper, because he was satisfied that Cooper was not in the market to purchase a new Buick automobile and that it was Cooper who paid for the refreshments had at Hoboken.
Motions for directed verdict against Fanny L. Cooper, individually and in her representative capacity, made on behalf of defendants and based on the ground that there was no evidence that Vail was acting as agent for Endress Motors, Inc., at the time of the occurrence of the accident, were denied by the trial court and we think properly so. Mahan v. Walker. 97 N.J.L. 304.
Appellant argues, however, that the testimony of the witnesses Galuppo and Harry Bowe is ...