On appeal from the District Court of the City of Orange.
For the appellants, Emanuel Silberner.
For the appellee, John W. Taylor (John R. Kingsland, of counsel).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The question we are called upon to decide in
this case is whether the learned trial judge erred in directing a verdict in favor of the defendant.
The facts surrounding the occurrence of the accident are not, in the main, in dispute. The evidence shows that the female plaintiff, while walking in front of defendant's store with her husband, sustained injuries when she fell into a cellar opening flush with the sidewalk. The doors covering that opening were opened by one Nicholas P. Sellito, a scavenger engaged by defendant company to remove rubbish from its store. On motion, the learned trial judge directed a verdict in favor of the defendant because in his judgment there were no proofs on which the jury could have determined that Sellito was an agent, servant or employee of the defendant company. Plaintiffs reserved an exception to that ruling and brought the matter before us on appeal.
The issue thus presented is a narrow one. In view of the total absence of any proof that the work Sellito performed was in itself a "nuisance" or that defendant employed an "unskilled" or "improper person" as a contractor (see Sarno v. Gulf Refining Co., 99 N.J.L. 340; 124 A. 145; affirmed, 102 N.J.L. 223; 130 A. 919; Bush v. Margolis, 102 N.J.L. 179; 130 A. 525; Latronica v. Damergy, 125 N.J.L. 323, 324; 15 A.2d 763), it remains for us to consider only whether there was, in the proofs submitted or in the inferences to be drawn therefrom, any evidence on which the jury could base a finding that Sellito was the agent, servant or employee of defendant. If there was such evidence the nonsuit was improper because of the familiar doctrine of respondeat superior. If on the other hand, there was no such evidence defendant could not legally be held responsible for plaintiffs' injuries and losses, and the nonsuit was proper.
The principles underlying the relationship of master and servant have many times been stated by our courts. That relationship is founded in the elements of "control, direction and representation in the services at hand." Courtinard v. Gray Burial, &c ., Co., 98 N.J.L. 493, 495; 121 A. 145; Cuff v. Newark and New York Railroad Co., 35 N.J.L. 17; Affirmed, Id. 574. Thus the relation is said to exist
where the employer directs the manner in which the work is done, orders how it should be done and where the party performing the work becomes the alter ego of the party for whom the particular work is done. Courtinard v. Gray Buriad &c ., Co., supra, p. 496, and cases cited; ...