On appeal from the Essex County Court of Common Pleas.
For the plaintiff-respondent, Perry E. Belfatto.
For the defendant-appellant, Coult & Satz (Joseph Coult, of counsel).
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
BURLING, J. This is an appeal from a judgment of the Essex County Court of Common Pleas in favor of plaintiff in the amount of $10,000 and costs against William Maier, the individual defendant, and Dugan Brothers of New Jersey, Inc., the corporate defendant, resulting from a verdict of a jury. Maier has not appealed.
The individual defendant, Maier, was a salesman and delivery man for the corporate defendant. He worked on a commission basis and had a large degree of control of his working hours and time. From the evidence on the record it appears that when he reported for work Maier would be charged with the value of goods placed on his truck and at the close of his route he would return the unsold goods and money, receiving credit for that which was returned.
On the day in question, Maier returned at his usual time, turned in his money and exchanged certain items for several loaves of bread which were to be delivered to some of his
customers on his way home. He loaded the bread in his own car and drove off. A short distance from the plant he collided with plaintiff and inflicted injuries upon her.
When called as a witness by the plaintiff, Maier testified that it frequently happened that during the service of his route he would encounter requests for items which he did not have in stock on the truck. When this happened he would obtain such items at the end of the day, usually by exchange for unsold goods, and deliver them on his way home.
Robert J. Bolen, the superintendent of the plant out of which Maier worked, was put on the stand by Dugan Brothers to show that the use of the salesman's own vehicle was unauthorized. However, on cross-examination it appeared that Bolen not only acquiesced in such a course of conduct but approved it because of the good will created among the customers. Although Bolen later denied this, it is apparent that the jury believed his first statements.
Where a servant, even in the execution of his general duty, uses an instrumentality not expressly or impliedly authorized by his master, and damage results, the master is not liable. Blackman v. Atlantic City and Shore Railroad Co. (Court of Errors and Appeals, 1941), 126 N.J.L. 458; Lambert v. Satsky Trucking Co. (Supreme Court, 1937), 118 Id. 485; Wilson v. Pennsylvania Railroad Co. (Supreme Court, 1899), 63 Id. 385; Anno. 166 A.L.R. 877; Restatement, Agency, 538, § 239; Sanford v. Charles H. Totty Co. (Court of Errors and Appeals, 1932), 110 Id. 262; Klitch v. Betts (Court of Errors and Appeals, 1916), 89 Id. 348 (at p. 352). In the instant case the evidence was conflicting and presented a proper question for the jury. Dobrow v. Hertz (Court of Errors and Appeals, 1940), 125 Id. 347; McMillan v. Mather (Court of Errors ...