For the plaintiffs-respondents, Louis Santorf.
For the defendant-appellant, William W. Evans and John W. Hand.
The opinion of the court was delivered by
CASE, J. This is an appeal by the defendant, Paterson Wimsett Thrift Company, from a double judgment, $5,000 for each plaintiff, entered against it and William Hart, its employee, following a jury verdict in the Passaic Circuit. Garrett Van Genderen and Edwin Rodgers were killed as the result of an automobile accident in the early morning of November 1st, 1936, following the evening of October 31st (Halloween) spent with Hart; and the administrators ad prosequendum of their respective estates are the plaintiffs in the cause. The automobile was driven by Hart. The fact of factual ownership is somewhat obscured. But by specific statement in respondents' brief the plaintiffs' case was not based upon a presumption of law attached to the ownership of the automobile; it went direct to a charge of agency. Liability was predicated upon the contention that the accident was due to negligent operation of the car, that the appellant
was at the time, through its agent Hart, in control and management thereof and that the decedents were invitee passengers. Appellant assigns error in the court's refusal to direct a verdict for the defendant, in certain rulings on evidence, in the court's charge and refusal to charge and in the reception of the verdict.
Hart, Van Genderen and Rodgers were close friends, young men of about an age, in the early twenties. Appellant is a lending company. Hart's main duties were in appellant's office. He was occasionally sent out to "pick up" a car in which the defendant had a financial interest and on like errands. It is respondents' contention, controverted by appellant, that it was a part of Hart's duties to make outside collections, and their case hangs upon the claim that it was Hart's duty and errand on the night in question to make a collection at a roadhouse -- the Colonial Inn -- and that the decedents were his invited guests on that errand. On October 31st, the night of the accident, Hart met Van Genderen and Rodgers at about seven-thirty o'clock. The meeting was by appointment. They planned to go to a dance at Pequannock, but it was too early for the dance and the young men made a tour of several beer halls. They reached the dance at Pequannock at about ten o'clock and there met two more of the Rodgers brothers and other persons. After the dance the three went to the Colonial Inn. It was the plaintiff's contention, as we have said, that the purpose was to enable Hart to make a collection for his company, but no collection appears to have been made. After leaving the Colonial Inn the accident happened. Other references to pertinent portions of the proofs will be made in the course of the opinion.
The burden of proving that Hart was on his master's business lay on the plaintiffs. Characteristic of the frailty of that proof is the testimony of Gordon Joseph Rodgers, a brother of one of the decedents, who had testified to an entirely unrelated incident wherein he -- Gordon -- had obtained a loan from the appellant company. He was asked on direct examination: "How many times did he [Hart] call upon you for payments?" and the answer was, "There may have been once or twice. I wouldn't be sure." The examiner in
his next question somewhat magnified this testimony: "And where did he on these two or three occasions * * * call upon you for these payments?" and the answer -- "Oh, I met him on the street. I met him once outside of my door and he spoke to me. I guess he meant to come upstairs." There that line of direct examination was dropped, and it was left to the cross-examiner to bring out that actually Gordon had made all of his payments at the defendant's office. That examination produced no substantial proof of authority, either special or general, to make outside collections. The scintilla rule does not obtain in this state. Schmid v. Haines, 115 N.J.L. 271; Wright v. Central Railroad Co., 124 Id. 113; Pellington v. Erie Railroad Co., 115 Id. 589.
A further line of testimony pursued in the effort to prove authority, or agency, to make outside collections was the proof of remarks said to have been made by Hart himself; and a typical instance of this is in the testimony of Daniel Rodgers, another brother of the decedent Rodgers. The matter under inquiry related to an incident when the witness went with Hart "just for a ride." The question was: "And before he took you, or before you got into the automobile that he was driving, tell us what he said to you." The question was objected to upon the ground that it was an attempt to prove agency by the statement of the alleged agent. The objection was overruled and an exception was noted. The answer: "Well, he said he was going to make collections and he would like to have someone with him; he liked to have someone with him when he went for collections." The court's ruling thereon is argued on the appeal as is also the allowance, over objection and exception, of a further question asked the same witness with respect to an alleged conversation between the witness and Hart at the Pequannock dance on the night of the accident. The question and answer: "What did he say to you and what did you say to him? A. It is just that I was going to follow him. When he put the car away we were going to have coffee and I was going to take the group home. * * * Just to follow him to the Colonial Inn. * * * That he had to go there on business and from there he was going to take the car down to the lot
and put it away, and we all lived around the same neighborhood and we would all go home together after we had coffee and." The witness and his party did not arrive at the Colonial Inn before Hart and the decedents had left and did not see them again. Agency cannot be proved by the declaration of the person whose agency is sought to be established. Pederson v. Kiensel, Adm'r., 71 N.J.L. 525. The admissions of an agent bind a principal only when within the scope of the agency or when they are authorized by the principal. Yoshimi & Co. v. U.S. Express Co., 78 Id. 281. Neither of the statements imputed to Hart was in the conduct of his alleged agency within the ruling of our ...