Bennett v. Busch
| Decision Date | 16 July 1907 |
| Citation | 75 N.J.L. 240,67 A. 188 |
| Parties | BENNETT v. BUSCH. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Action by Reginald S. Bennett against Alfred Busch. Verdict for plaintiff. Rule to show cause. Discharged.
Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ.
Edmund Wilson, for plaintiff. Lindabury, Depue & Faulks, for defendant.
This action was brought by the plaintiff, Reginald S. Bennett, against the defendant, Alfred Busch, to recover compensation for personal injuries sustained by the plaintiff and damage done to his horse and carriage in a collision which occurred between the plaintiff's carriage and an automobile alleged to have been in the control of a servant of the defendant. The trial resulted in a verdict in favor of the plaintiff for $1,292.
The defendant was allowed a rule to show cause why this verdict should not be set aside and a new trial granted. The collision which gave rise to the suit occurred at Asbury Park in this state on the evening of June 29, 1905. The defendant was not in the automobile at the time of the collision, but it is contended by the plaintiff that the person operating it was the servant of the defendant for whose negligence the latter is responsible. It is conceded by the defendant that the jury was warranted in finding that the collision resulted because of the negligence of the driver of the automobile; but it is insisted that the defendant is not liable for that negligence, and that the trial judge should have directed a verdict for him for the reasons, among others: First, that defendant was not the owner of the automobile, and the driver thereof was not his servant; and, second, that assuming the driver to have been the servant of the defendant, the latter is not liable because the driver had not been intrusted with the operation of the automobile on the occasion when the collision occurred and was not acting within the scope of his employment
We think the motion for a direction of a verdict for the defendant was properly denied for these reasons:
First. The evidence as to the ownership of the automobile and as to the relationship of master and servant between the defendant and the driver was conflicting. On behalf of the plaintiff, there was evidence tending to show that the defendant was the owner of the machine, and that the driver was his servant. There was evidence of a conversation between the plaintiff and the defendant immediately after the accident, and while talking about a settlement, in which the defendant said: "My machine is injured probably quite as much as your wagon." And the plaintiff replied: "Then this is your machine, and this man was running it for you when this accident occurred?" To this the defendant answered: "Yes." There was also in evidence declarations of similar import made at the magistrate's office and elsewhere and other testimony which need not be recited at length, all tending to show ownership in the defendant, and that tie driver was his servant. The defendant's denial, which there was evidence supporting, was, in substance, as follows: That the automobile was the property of the Anheuser Busch Brewing Association, loaned to the Busch Bottling Company for the use of its treasurer and manager, the defendant in this case, and that the chauffeur was the employé of the Busch Bottling Company. The most that can be said for the defendant is that there was a conflict in the proofs.
Second. Assuming that the automobile which caused the accident was the property of the defendant, and was driven at the time by his servant, it seems clear that there was evidence tending to show that the servant was acting at the time within the scope of his authority. The defendant testifies, in effect, that he was engaged at this time in a business trip to the towns of the Jersey coast. During that week he made his headquarters at the Marlborough Hotel at Asbury Paris, and the automobile was kept in a garage several blocks from the hotel. On the day of the accident, and before its occurrence, the defendant had been pursuing his business in the neighborhood. With him, as usual, was his chauffeur, Alfred Harse, who was employed to "take care of the machine and keep it in order" and was accustomed to '"bring the machine from the garage to the hotel in the morning." At 6 o'clock in the evening they returned to the hotel in the...
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...drawn from the facts, whether controverted or uncontroverted, the question at issue should be submitted to the jury. Bennett v. Busch, 75 N.J.L. 240, 67 A. 188 (Sup.Ct.1907); Finnegan v. Goerke Co., 106 N.J.L. 59, 147 A. 442 (E. & A.1929); Lipschitz v. New York and N.J. Produce Corp., 111 N......
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...judge, the jury might have found otherwise, Knickerbocker Ice Co. v. Anderson, 31 N.J.L. 333; Queen v. Tennings, supra; Bennett v. Busch, 75 N.J.L. 240. 244, 67 A. 188; Finnegan v. Goerkc Co., 106 N.J.L. 59, 147 A. 442, or merely because the trial judge, if required to determine the facts, ......
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