McGeehan, Jayne, and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
The present litigation arose out of the occurrence of a collision on the morning of September 10, 1949, at the intersection of Edison Street and Maplewood Avenue in the City of Clifton, between a passenger automobile owned and occupied by the plaintiff Angelo Nicosia and driven by the plaintiff Frederick Schaefer, and a motor truck owned by the defendant Ralph Marangi and operated by the defendant James E. Alston.
At the conclusion of the introduction of the evidence, the plaintiffs submitted to a voluntary dismissal of their cause of action against the defendant Alston, and on motion the court granted a judgment in favor of the defendant Marangi.
We do not concern ourselves with the proof of the circumstances amid which the collision itself occurred. The subject matter of the present appeal pertains solely to the existence of any evidence to establish in a prima facie degree either the express or implied authority of the defendant Alston to operate the truck on that occasion as the agent and servant of the defendant Marangi.
The evidence discloses that the defendant Marangi was engaged in the business of collecting and removing garbage and ashes deposited in front of the premises of the inhabitants of the City of Clifton. In the pursuit of that business he used several motor trucks, and for each truck he engaged a crew consisting of a licensed driver to operate the truck and among the others one or more "lifters" whose duty it was to lift the containers from the curb to the body of the truck. There is no doubt that Alston was employed as a "lifter." The general supervision of the operations was entrusted by Marangi to his foreman, Curely.
About one-half hour before the happening of the collision, Curley in the course of his customary tour of inspection arrived in the vicinity of the truck and discovered that one Schettino, who was the driver of the truck, had become ill and that he was unable to continue to operate the truck.
Observing the situation Curley announced his intention to take Schettino home and admonished the others including Alston: "Stay right here and wait for me to come back." "You fellows stay right here until I come back." "I am going to take Mr. Schettino home, I intend to find someone else, if not I will come back and operate the truck myself. * * *"
Notwithstanding such express instructions, and moreover without any official license to drive a motor vehicle, Alston nevertheless resolved to operate the truck during the temporary absence of his foreman and in so doing engaged in the occurrence of the mishap.
Although Alston had pursued his employment from January 6, 1948, it is not evident that the defendant Marangi or his foreman, Curley, had any knowledge that Alston had ever driven any of the trucks on a public street. Marangi had expressly forbidden him to drive them.
His employer, Marangi, described the nature of the duties of Alston's employment:
"He picks cans off the curb and throws them up on the truck to a man waiting up there, and the man on the truck empties the can and throws it back to him ...