Sullivan, Carton and Halpern. The opinion of the court was delivered by Carton, J.A.D.
[110 NJSuper Page 71] Plaintiff Robert W. Harvey, a passenger in an automobile operated by defendant Harold E. Dow and owned by Dow's wife Phyllis, sustained injuries when the Dow car collided with one operated by defendant
Walker and owned by defendant Craw. Plaintiffs obtained judgments based on jury verdicts totaling $1,207,784 against Harold E. Dow and both Walker and Craw. Craw alone appeals.
Plaintiffs sought to impose liability on Craw as owner of the automobile on the theory that Walker was acting as Craw's agent when the accident occurred. Craw specifically denied agency. His alleged agency is the only issue on this appeal. Plaintiffs adduced no evidence on their case in support of the claim of agency. Instead, they relied upon the presumption of agency arising from Craw's ownership of the vehicle.
Craw testified on his own behalf that he had met Walker at an ice cream parlor on the evening the accident happened, although not by any prearrangement. Craw had a date with his girlfriend and because Walker's car, a 1950 model, was more comfortable than his own, he wanted to borrow it. Walker agreed to let Craw use his car if Craw left his for Walker. Craw departed with his girlfriend and did not see Walker leave. He expected to return by ten o'clock that night. He learned of the collision upon his return. Craw denied that Walker was using his car on any business of his whatsoever.
On cross-examination, Craw acknowledged knowing Walker prior to this occasion, but insisted they were not close friends. He conceded he might have exchanged cars on other occasions -- once or twice previously -- but not as a regular occurrence. He said Walker did not inform him where he was going, nor did Craw know or ask. Craw did not recall giving Walker any restrictions as to where the latter might go, saying only that if Walker wanted to use the car he could. Craw's cross-examination was concluded with his admission that he had been convicted of a crime.
In support of Craw's testimony the defense read the deposition of McNabb, which shed the only other light on Walker's use of Craw's car. McNabb deposed that he and two other men met Walker accidentally at the ice cream parlor,
that Walker was driving Craw's car and invited McNabb and the two men to attend a party in a nearby town, and that they joined him.
McNabb expressed the belief that the reason Walker was driving Craw's car was that they had traded cars that evening. He did not see them actually do so but he did see Craw driving Walker's car.
There was no rebuttal testimony. None of the parties called Walker as a witness.
Craw then moved to dismiss the action as to him. The trial court denied the motion because Craw's conviction created a factual question as to the credibility of his testimony (designed to rebut the presumption of agency), requiring submission of the agency issue to the jury.
Craw's liability to plaintiff could only be established if Walker was in fact acting as Craw's agent in operating his car when the accident occurred. To establish agency, plaintiffs relied upon the rule of law that use of an automobile upon a public highway by one who is not its ...