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Gindin v. Baron

Decided: January 10, 1951.

HAROLD GINDIN, PLAINTIFF-APPELLANT,
v.
HERMAN BARON AND B. & B. PROVISION CO., A CORPORATION OF NEW JERSEY, DEFENDANTS-RESPONDENTS



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

In this civil action the plaintiff alleged that on March 14, 1949, in a store designated as No. 411 Clinton Avenue in the City of Newark, the defendant David Stein committed a willful and malicious assault and battery upon him. There were two other defendants, Herman Baron and the B. & B. Provision Company, a body corporate. A slight revision of the issues at the pretrial conference suggested that the defendant Baron was individually trading under the name of B. & B. Provision Company and that the corporation of that title was "dormant" and not engaged in the pursuit of its authorized business. The alleged liability of Baron individually and of the corporate defendant was based upon the doctrine of respondent superior.

Upon motion on behalf of the defendants, the alleged causes of action against Baron and the corporation were dismissed

by the court. The jury announced a verdict in favor of the plaintiff against the defendant Stein with an award of $8,000 compensatory and $2,000 punitive damages. Judgment for $10,000 was entered accordingly in favor of the plaintiff against the defendant Stein and in favor of the other defendants.

By this appeal, the plaintiff-appellant challenges the propriety of the ruling of the trial judge in dismissing the action against the defendants Baron and the corporation, B. & B. Provision Company.

It is, of course, elementary that in passing upon a motion to direct a verdict and its present equivalent, just as in passing upon a motion for a nonsuit or for an involuntary dismissal, the evidence will not be weighed. The party against whom the motion is made is entitled to have all the evidence in his favor and all the legitimate inferences to be drawn therefrom treated as true. When fair-minded men may honestly differ as to the conclusion to be reached from that evidence, controverted or uncontroverted, the case must be submitted to the jury. Dobrow v. Hertz , 125 N.J.L. 347 (E. & A. 1940).

We have therefore examined the transcript in quest of the evidence and its permissive inferences which are favorable to the alleged causes of action of the plaintiff against one or both of those defendants who were absolved by the court from liability.

We may immediately state that the evidence against the corporate defendant was indubitably insufficient and the dismissal of the action against it will be affirmed.

The evidence in support of the alleged cause of action against the defendant Baron is more substantial. It was productive of several reasonably acceptable inferences.

The plaintiff was in the employ of Hebrew Kosher Provision Co. The defendant Stein was in the employ of the defendant Baron, trading as B. & B. Provision Company. Their respective employers were business competitors. The plaintiff and Stein were each performing for their respective employers the duties of a route salesman.

About two weeks prior to the occasion of the assault, Stein while operating the truck of his employer drew it alongside of the truck being driven by the plaintiff and said to the plaintiff: "If you don't stay away from my customers I am going to knock your block off." A week later the plaintiff in returning from Jersey City observed ...


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