Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
[69 NJSuper Page 112] Plaintiff Della Cerra sued defendant Burns, owner of an automobile, for damages to her own automobile resulting from Burns' car's being run into it, while parked, by a person unknown. Burns filed a third-party complaint against defendant Vermarec (doing business as Ray's Service Station). Della Cerra then amended her complaint to join Vermarec as a direct defendant. The action was tried to a jury in the Passaic County District Court. Upon its verdict, judgments in amounts of $500 and $400 were entered in favor of, respectively, the plaintiff Della Cerra and the third-party plaintiff Edward Burns,
and against Vermarec. A verdict of "no cause" was returned on Della Cerra's claim against Burns. Vermarec appeals from both of the judgments entered against him.
The claims arose out of a hit-and-run collision which occurred at 3:30 A.M., Sunday, February 8, 1959. One of Burns' two cars, driven by an unidentified man, ran into the front end of the Della Cerra car, which was parked at the curb in front of her home. The downstairs neighbor, awakened by the crash, saw only the driver's back as he ran off.
Burns had left the car at Vermarec's gas station Saturday morning, February 7, 1959, to have some repairs made. After doing some work on the car, Vermarec left the station at 6:00 P.M. and did not return until Monday, February 9, being out of the State over the weekend. Burns returned for the car about 7:30 P.M. Saturday evening but was informed by Vermarec's mechanic, Spann, who had been left in charge, that a minor repair to the speedometer cable had yet to be made. Thereupon he told Spann that he might return for the car later that evening. His hesitation was prompted by an uncertainty as to whether the repair could be completed on Sunday. If not, he would take the partially repaired car, since he needed it on Monday. He told Spann that he would go home to dinner while making up his mind, but his precise instruction to Spann is in dispute. According to Spann's testimony, Burns stated that when Spann closed up, the car was to be left outside, on the station premises, unlocked, with the key secreted under the floor mat on the driver's side. According to Burns' testimony the car was to be so left if Spann closed before 9:00 P.M. , the normal closing hour. (There is an issue concerning the admissibility of Burns' testimonial version, which will be dealt with infra.) Vermarec had given Spann standing instructions, so Spann testified, that cars in running condition, left overnight, were to be locked in the enclosed service bays. But there is no evidence that this was known to Burns. Burns testified that Spann did not tell him
definitely whether the car could be repaired on Sunday, but Burns assumed that "possibly" it could, as Vermarec had done repair work for him on other Sundays. Spann testified he told Burns that "Ray [Vermarec] was out of the area and wouldn't be in."
Upon returning home, Burns was reminded of a social engagement that evening, and he decided to leave the car at the station until morning, but he did not so inform Spann.
Spann closed at 9:00 P.M. but remained around the station working on his own car until about 10:30 P.M. He then left Burns' car outside the building, on the station premises, with the key secreted underneath the floor mat, allegedly in conformity with Burns' directive. But for those instructions, said Spann, he would have locked the car in a bay in accordance with Vermarec's standing directions. Sometime during the five-hour interval between the closing of the station and the occurrence of the accident, an unknown person took the car and drove it off, with the consequence related above.
A casual employee of Vermarec, one Frank Drop, had worked at the station until 5:00 P.M. Saturday and was not scheduled to return to work until Monday or later. Vermarec testified on cross-examination that Drop, about one month before the accident, had availed himself of the use of a customer's automobile similarly situated.
According to Burns' testimony, his conversation with Spann did not deal specifically with the contingency of the station's not being closed before 9:00 P.M. and Burns' not returning for the car before it was closed. Burns argues that in such circumstances a duty of reasonable care of the car devolved upon Vermarec as bailee, represented by Spann as agent, and that a jury could find that duty violated if Spann did not follow Vermarec's standing orders for enclosing any car left overnight in a locked bay. But there was other testimony by Burns clearly indicating that in such circumstances he would expect, and the prior course of dealing was, that the car be left outside with the key secreted, just as it was actually left on the evening here involved. This
was adduced when, on cross-examination by Vermarec's counsel, Burns was interrogated as to why he did not phone Spann as to his plans when he was reminded by his wife, at home, prior to 9:00 P.M. on February 7, that they had an engagement to visit friends in Garfield and he therefore knew he would not be returning for the car that evening or during the night. He testified:
"Q. When did you remember that you were going to go to Garfield on this night? ...