Sullivan, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
In these consolidated motor vehicle negligence cases defendant Bond Transportation Inc. (Bond) appeals from those portions of a final judgment entered against it, after jury trial, for $4,000 and costs in favor of plaintiff Michael Murphy by his guardian ad litem and for $100,375 and costs in favor of plaintiff Edward A. Cox. Bond also appeals from the trial judge's denial of its motion for judgment n.o.v. or for a new trial.
At all relevant times Bond was a carrier franchised by the Interstate Commerce Commission (I.C.C.) to engage in
trucking one-way from New Jersey to New York. It's certification number was I.C.C. 15727. At the same time, defendant Manuel McCaskill was the owner of a tractor.
In February 1964 Bond entered into an oral agreement with McCaskill whereby the latter leased his tractor to Bond and agreed to operate it in Bond's trucking business "as long as there was work to be had." Pursuant thereto McCaskill hauled oil sporadically for Bond until November 30, 1964 and on a fairly steady basis from December 1964 to January 22, 1965, the date of the accident here involved.
During all that time every trip but one that McCaskill made for Bond took place entirely within the confines of the State of New Jersey. Usually, McCaskill would leave Bond's terminal in Woodbridge and proceed to Paragon Oil in Newark. After Bond's trailer (tank car) was loaded with oil he would proceed to his destination where he would discharge his load. Thereupon, he would return to Woodbridge and unload his tractor from the trailer.
The one interstate trip was made on December 12, 1964 when McCaskill carried a shipment from Brooklyn to Paulsboro, New Jersey. However, since Bond was not franchised by the I.C.C. to make this haul, the journey was made, pursuant to arrangements made by Bond, under the permit of a lawfully franchised carrier, Saldutti.
On January 22, 1965 McCaskill made five intrastate trips from Newark to Whippany, New Jersey. When he concluded his work he returned to Bond's terminal in Woodbridge and unhooked the trailer from his tractor. He then proceeded to drive his tractor to his home in Long Branch. On the way, while traveling south on Highway 35, he was in a multi-vehicle collision, involving automobiles then being driven north on said highway by plaintiffs Cox and Michael Murphy.
Thereafter plaintiffs brought actions for personal injury, property damage and consequential damages. The suits were consolidated for trial. Plaintiffs alleged that Bond was vicariously liable for McCaskill's purportedly negligent conduct either under a common law master-servant respondeat superior
theory or by virtue of Bond's special responsibility as an I.C.C. carrier for the operations of vehicles leased by it that were used under Bond's franchise. At the conclusion of all the testimony the trial judge granted Bond's motion to dismiss the claim based upon respondeat superior. No cross-appeal has been taken from that ruling.
However, the court denied Bond's motion for a judgment of dismissal based upon the absence of a showing that McCaskill was working under Bond's I.C.C. franchise in interstate Commerce either in general or at the time of the accident. Instead, the court in its charge, and by a specific ...