Eastwood, Bigelow and Francis. The opinion of the court was delivered by Bigelow, J.A.D.
[20 NJSuper Page 348] The plaintiff was injured and his wife killed in a collision between their automobile and a truck
driven by the defendant Amodeo and owned by the defendant-appellant Hinz. The plaintiff, who sues individually and as administrator ad prosequendum , obtained a severance and proceeded to trial against Hinz alone. The jury returned a verdict in favor of plaintiff and against Hinz and the latter appeals. After all the evidence was in, Hinz moved for judgment on the ground that the truck driver at the time of the accident was not acting as his agent and hence that he was not answerable for the driver's negligence. The denial of the motion is the only reason presented for reversal.
The appellant's answer admitted ownership of the truck which was driven by Amodeo at the time of the accident. The plaintiff offered no evidence that Amodeo was the servant of Hinz, acting within the scope of his employment, but relied upon the presumption arising from ownership of the truck. Edgeworth v. Wood , 58 N.J.L. 463 (Sup. Ct. 1896). For the effect of presumptions generally, see O'Dea v. Amodeo , 118 Conn. 58, 170 A. 486 (Conn. Sup. Ct. Err. 1934) and article by Professor Morgan, 44 Harv. L.R. 906. Hinz, in his testimony, admitted that Amodeo was in his employ but denied, in effect, that he was acting within the scope of his employment. Amodeo did not testify; Hinz himself was the only witness for the defense. This was the substance of his testimony: Hinz was in the food and produce business. Amodeo drove a truck for him and hawked the produce from the truck. The afternoon before the accident, Hinz told Amodeo, "Pick me up tomorrow morning at about 4 o'clock; we are going to Hightstown." He told him meanwhile to leave the truck in front of his, Amodeo's, home or at the yard where Hinz' trucks were usually parked when not in use.
The accident occurred at 1 o'clock in the morning at Webster Avenue and Griffith Street, in Jersey City. It is appellant's contention that Amodeo could not have been pursuing his master's business, at the hour and at the place where the truck collided with plaintiff's automobile. Hinz testified that his yard was located at 224 Railroad Avenue; that Amodeo lived seven or eight blocks away, "on Monmouth Street, right
off of Fourth," and that Hinz himself lived at 317 Ege Avenue. But no witness mentioned the municipality in which these streets lie, and no map was introduced in evidence. We add that counsel admit that there are in Jersey City streets bearing the names recited and that Hinz' answer filed in the cause states that he resides in that city. The street addresses were brought out on the cross examination of Hinz, conducted by plaintiff's counsel who seemed well acquainted with the facts and to have assumed that the jury understood the import of the testimony. We quote:
"Where do you live? Ege Avenue -- 317 Ege Avenue.
Now, how far does Amodeo live from your yard? Maybe about 7 or 8 blocks.
What is the address? Exactly, offhand I don't know his address, but he lives on Monmouth Street right off of Fourth.
Where is your place of business? Railroad Avenue.
And Railroad Avenue is one block in back of Newark Avenue, is it not? No, two blocks ...