McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
The factual aspects of this case are all displayed by the testimony introduced on behalf of the plaintiff because at the completion of the presentation of that evidence the court, in pursuance of the motion of the defendants, determined that upon the facts and the law the plaintiff had not shown a right to relief. Rule 3:41-2.
On Sunday, November 10, 1946, the plaintiff having had "a little argument around the house" and "wanted to get out" inaugurated the day's adventures with a visit to Ben's Tavern where at about noon, as so often occurs in such surroundings, he met a friend whom he had not seen for several years. They indulged in "the feast of reason and the flow of soul."
It may be inferred that at some stage of their conversation the plaintiff divulged that his automobile was in need of some mechanical repair, whereupon his friend George assured him that he was a motor vehicle mechanic and expressed his desire to show the plaintiff the automobile service station and repair shop of the defendants at which he was occasionally employed. There is some intimation that en route to the service station plaintiff's vehicle collided with another vehicle, but we entirely ignore it.
The plaintiff and his companion arrived at the service station at about 3:30 in the afternoon. It was closed on Sundays. They observed no one at or around the premises. Plaintiff parked his vehicle on the driveway beneath the canopy of the station and noticed that automobiles were standing on top of each of the two nearby grease pits. George then departed. The plaintiff understood that his friend's mission was to change his clothes. George ascribes it to the need of more money.
Thus circumstanced, the plaintiff was overtaken by an attack of irresistible drowsiness and fell asleep on the driver's seat of his car, where Morpheus held him captive until George returned at 6:00 P.M.
After an interlude of about 20 minutes in duration at a neighborhood restaurant, the plaintiff and his friend George discovered another tavern conveniently located, which they entered.
The plaintiff stated that there he began to play shuffleboard. He explained that it is "customary to drink at the end of each game" and that "some go faster than others."
At about 9:30 P.M. the plaintiff noticed that George had disappeared. The plaintiff experienced some anxiety:
"Q. Was there any particular reason why you wanted to see him at that time?
A. Yes, he wanders around when he gets tanked up, and I didn't want to see him get hurt."
In search of George the plaintiff visited the service station and discovering that his automobile was not there, he returned to the tavern to resume the game and presumably its customary accompaniments. He elucidates his state of mind at that time: "I thought some children might have taken it." He did, however, communicate the information to the police department that his car was missing. It was later revealed that ...