On appeal from the Second District Court of the City of Paterson.
For the appellant, Louis P. Bertoni (argued by Aaron Heller; Morris Fishman, of counsel).
For the appellee, Andrew Mainardi (Archibald Drieger, of counsel).
Before Justices Case, Bodine and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is an accident case. The basic question for decision is whether, in the circumstances exhibited, the corporate defendant is liable to the plaintiff for the actionable negligence of its servant upon the doctrine of respondeat superior.
Plaintiff, Roy Van Horn, sued defendant Harold Gibson (hereafter referred to as Gibson) and Pioneer Baking Co. (hereafter referred to as Pioneer), to recover his damages for the personal injuries which he allegedly suffered as the result of a collision which occurred on September 24th, 1942, on River Street, Paterson, New Jersey, between the automobile owned and operated by him (plaintiff) and the automobile owned and operated by Gibson.
Plaintiff sought to fasten liability against Pioneer on the pleaded theory, namely, that Gibson was, at the time of the
accident, operating his automobile "as the agent of and for and on behalf of (Pioneer) and at its express instance and request." Gibson did not deny liability. In fact, he testified for and in behalf of the plaintiff. Pioneer denied liability. Its denial was based upon the premise that Gibson was not operating his automobile, at the time of the accident, as its agent or servant either pursuant to its request or to the authorized request of anyone in its behalf.
From the uncontradicted and contradicted proofs, it was open to the trial judge, who sat without a jury, to find the following facts: For the past sixteen years Gibson had been, and was at the time of the accident, employed by Pioneer, as a route salesman and driver of one of its trucks, on a salary and commission basis. He came to work between 4:00 and 4:30 A.M., and generally completed his day's work between 1:00 and 3:00 P.M. For about one and one-half to two years Gibson had made special deliveries of bread and rolls, three or four times a week, to the cafeteria of the Wright Aeronautical plant at Fair Lawn, New Jersey. This plant is located about three-fourths of a mile beyond Gibson's home and he used his own automobile to make such deliveries because in addition to saving him about one-half an hour each day in returning home it also saved the use of the employer's truck, gasoline, oil and tires, savings urged by the employer. The employer did not supply Gibson with gasoline or oil for his car nor did it compensate him for the use thereof. Gibson did not collect for the bread and rolls delivered to the cafeteria; he obtained a receipt for the bread and rolls delivered and turned such receipt in at the office of Pioneer; and he received commissions on such deliveries.
On September 24th, 1942, Gibson was directed to make a special delivery of bread and rolls to the cafeteria after he had completed his regular route delivery. In making that delivery he proceeded, in his own automobile, in a direct route to the plant, passing his home on River Street. After making the delivery he proceeded, by direct route, to return to his home where he also had ...