Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
[72 NJSuper Page 415] On January 29, 1960, an automobile owned by plaintiff Richard S. Wright, and operated by Margaret Wright, was damaged to the stipulated extent of
$710, when it was struck by a truck owned by defendant Globe Porcelain Co., and operated by an employee, Floyd E. Gibson. The Wrights sued in the Mercer County District Court for the damage to their car.
After a trial without a jury the district court found that the collision was due to the negligent operation of Globe's truck by Gibson and that Margaret Wright was not guilty of contributory negligence. The claim of Margaret Wright for damage to the Wright automobile was dismissed because she was not the owner of the vehicle. Richard S. Wright was allowed a judgment of $710 and costs against Floyd E. Gibson. The action against Globe Porcelain Co. was dismissed on the ground that, at the time of the occurrence, Gibson was not acting within the scope of his employment with Globe "because he specifically was instructed at an earlier date not to operate the truck and had received no order or permission to drive on the day of the collision," the trial court concluding that therefore "no agency existed between Gibson and Globe Porcelain Co. at the time of the occurrence."
Richard S. Wright alone appeals from that portion of the judgment which dismissed his complaint against Globe Porcelain Co. He contends that under the facts of this case Globe is liable to him under the doctrine of respondeat superior.
The parties have submitted the matter upon an agreed statement in lieu of the record, approved by the district court, which contains the aforesaid findings of fact and conclusions of law. The basic issue on appeal is whether Globe Porcelain Co. is liable for the negligence of its employee Gibson in view of the fact that Gibson was expressly forbidden to drive the truck which caused the damage to plaintiff's automobile. The evidence at the trial reveals the following facts which may aid in the solution of the problem.
Gibson was employed by Globe Porcelain Co. as a laborer and his assigned duty on the day in question was to load
Globe's truck. The truck had been driven forward into a bay which ran directly from and perpendicular to Bruenig Avenue in Trenton. The customary practice in loading the truck was to load it from the one side and then when the truck was half filled to back the truck out of the bay onto the street, turn it around, and back it into the bay for loading of the other side. Gibson had loaded the truck many times, usually with the help of another man, having been in Globe's employ since October 29, 1959. However, he had never previously backed the truck into the street. On the day in issue, Gibson had been directed by his supervisor, Elias Steinert, to load the truck with the assistance of a man named Jim. The loading took place during a time when Steinert and one Fred Williams, who drove the truck, were away at lunch.
When Gibson and Jim had loaded one side of the truck and the driver Williams was then not present, Gibson, although he was without a driver's license and had been expressly forbidden a few weeks prior thereto to drive the truck, undertook to back up the truck from the bay or driveway onto Bruenig Avenue, for the purpose of turning it around and backing it into the bay so that it might be loaded on the opposite side. In so doing, Gibson backed the truck into the right side of the Wright automobile, as it was passing at that time and place, and was negligent in failing to make proper observation of plaintiff's vehicle in the public street. Thus, there is no question that the evidence supports the trial court's finding of Gibson's negligence, of Margaret Wright's freedom from contributory negligence, and that Gibson was performing a task for the benefit of his employer, rather than his own personal benefit, at the time of the occurrence.
When Steinert hired Gibson as a laborer he learned that Gibson had no driver's license. Gibson was never authorized to drive Globe's vehicles. Furthermore, a few weeks prior to the collision in issue Gibson, although unauthorized, had driven Globe's truck within a building and had damaged the
truck by scraping off the paint, and at that time Steinert gave Gibson a specific order that he was never to drive any vehicle owned by the defendant company. This mandatory order had never ...