The opinion of the court was delivered by: FORMAN
Emil Arndt, the plaintiff, instituted this suit to recover damages for personal injuries sustained when he was struck by an automobile owned by one of the defendants, Mitchell Cadillac Rental, Inc. (hereinafter called Mitchell), and operated by its driver, another defendant, Stueck. The complaint insofar as it pertains here in Count 3 alleges that on December 17, 1951, an automobile was being driven along Route No. 29, Township of Bridgewater, Bound Brook, New Jersey, by an agent and servant of Vanadium Corporation of America (hereinafter called Vanadium), and was being used in the business of said defendant and that the defendants, Ward A. Miller, George H. Haley, Gustav Laub and William Keeley, allegedly certain employees, officials and agents of said defendant Vanadium, were riding in the automobile and exercising direction and control over the use and operation of it for its business. In count 4 Miller, Haley, Laub and Keeley were charged with operating the motor vehicle negligently by their servant and agent.
The defendants Vanadium, Miller, Haley, Laub and Keeley have moved to dismiss the complaint as to them under Rule 12(b)(2)
of the Federal Rules of Civil Procedure on the ground that this court has not acquired jurisdiction over them due to the fact that service of process upon them was not made in accordance with the provisions of Rule 4(d)(7)
of the Federal Rules of Civil Procedure.
All of the defendants are non-residents of the State of New Fersey and were served with process through the Director of the Division of Motor Vehicles, pursuant to Title 39, Chapter 7, § 2(b) of the Revised Statutes of New Jersey,
Since it is undisputed that the defendant Stueck was an employee of the defendant Mitchell the rules of law applicable to the principles of the 'borrowed servant' and of respondeat superior come into question in determining whether there was compliance with the said statutes.
In the case of Courtinard v. Gray Burial, etc., Co., E. & A. 1922, 98 N.J.L. 493, 121 A. 145, the defendants, Caseys, were undertakers and hired from the defendant Gray Company, an automobile and driver to go from Plainfield, New Jersey, to a cemetery in Brooklyn, New York. One of the Casey defendants sat in the front seat with the driver but did nothing except to state generally the cemetery objective of the funeral which was to be held. It was held in that case that
'the elements of hiring, control, direction, and power of dismissal * * * present the fundamental tests of the liability of the occupant and hirer of the coach, under the legal status test of master and servant.' 98 N.J.L. at page 496, 121 A.at page 146.
Since that case the courts of New Jersey have at least impliedly adopted these standards along with the test of whose service or benefit the actor is furthering.
'The question of whether the general employer, or the specific employer is the master turns upon the decision as to who has the right to exercise control over the servant. * * *'
The latter case cites with approval the following quotation from the Restatement of the Law of Agency:
'In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.' Restatement of the Law of Agency, § 227, comment (b).
The quoted language from the Younkers case was in turn cited with approval by the New Jersey Supreme Court in the recent case of Larocca v. American Chain and Cable Co., 13 N.J. 1, 97 A.2d 680.
See Restatement of the Law of Agency, c. 7, § 220(b), pp. 484-5, particularly the following language:
'Where the inference is clear that there is, or is not, a master and servant relationship, it is made by the court; otherwise the jury determines the question after instruction by the ...