Collester, Mintz and Lynch. The opinion of the court was delivered by Lynch, J.A.D.
This is an appeal, leave having been granted, by defendant T & F Distributing Co. (T & F), a distributor of vacuum cleaners, from the denial of its motion for summary judgment. In this suit T & F is charged with negligence in having selected one Watson to sell its vacuum cleaners when it should have known that he had vicious propensities. In the course of his contact with plaintiff Miriam Bennett, to whom he had sold a vacuum cleaner at her home in Neptune City, he committed an atrocious assault and battery upon her. She sues for damages for the serious injuries she sustained. Her husband sues per quod. Watson is currently serving a 7-10-year sentence in the State Prison for the crime thus committed.
On September 11, 1968 Roy Watson signed what is labeled an "independent Dealer's Contract" with T & F, wherein Watson, as "dealer," agreed to buy vacuum cleaners from T & F and to sell them at retail. It is not necessary to set forth the details of the contract but it is apparent that every effort was therein made to establish that Watson was an "independent dealer" and not an employee of T & F. Suffice it to say that such questions (agency vel non) scarcely can be decided as a matter of law, but usually are questions for the fact finder, considering all elements relevant to the proper status. Cf. Miklos v. Liberty Coach Co. , 48 N.J. Super. 591, 602 (App. Div. 1958).
The allegation of the complaint is that T & F was negligent "in hiring, entering into an arrangement, or permitting the said Roy E. Watson, otherwise known as Leroy Turner, to be placed in a position where he could make sales on a door-to-door basis when they know, or should have known, of his vicious propensities and his prior criminal record."*fn1 If Watson had been acting within the scope of employment when he assaulted Mrs. Bennett, it would be immaterial whether T & F was negligent in hiring Watson, for in such instance T & F would be liable on the theory of respondeat superior. In 53 Am. Jur. 2 d Master and Servant , § 422 at 437, it is said:
The application of the theory of independent negligence in hiring or retaining an employee becomes important in cases where the act of the employee either was not, or may not have been, within the scope of his employment. In these cases such application allows the injured person to establish liability on the part of the master where no liability would otherwise exist. For this reason a great many of the cases holding the theory applicable involve assaults.
Thus we here approach the issue as to whether T & F can be held liable for negligence in selecting Watson to sell its vacuum cleaners and whether the denial of summary judgment as to T & F was proper.
Prior to signing the contract Watson had filled out an application for the so-called "dealership." He gave the names of two former employers and listed two references. T & F's president testified on deposition that he had telephoned the two employers and each advised that Watson was reliable and responsible. His recollection as to the references was somewhat hazy but he "believed" he had called them and he was "satisfied." No other inquiry was made.
The fact was that Watson had a rather extensive criminal record. However, in all but one instance the record was under
an alias of Leroy Turner. Under the latter name he had been convicted of larceny of automobiles, assault and battery, malicious mischief, of being a disorderly person, and also he had been arrested and charged with possession of stolen property. On March 17, 1968, about 5 1/2 months before his employment with T & F and about 6 1/2 months before the Bennett episode, he had been arrested on a charge of assault with a deadly weapon. The F.B.I. record on this charge entered the arrest under the names of both Leroy Turner and Roy Watson.
The court below denied T & F's motion for summary judgment on the ground that there were "factual questions to be decided as to the relationship between T & F, the defendant in this case, and Watson."
At oral argument we were advised that in Neptune City, where Watson solicited Mrs. Bennett's patronage, there was an ordinance which required that all "peddlers" such as Watson be licensed. We are further advised that it is the practice to obtain fingerprints of the licensee, though the ordinance does not, by its terms, require it. Watson was not licensed. There is thus raised the question as to whether T & F had a duty to see to it that Watson was ...