J. L. Querner Truck Lines, Inc. v. Safeway Truck Lines, Inc.

• Citation: 65 N.J.Super. 554,168 A.2d 216
• Decision Date: 24 February 1961
• Docket Number: No. A--759,A--759
• Parties: J. L. QUERNER TRUCK LINES, INC., a corporation, Plaintiff-Appellant, v. SAFEWAY TRUCK LINES, INC., a corporation, Defendant-Respondent.
• Court: New Jersey Superior Court – Appellate Division

Page 554

65 N.J.Super. 554

168 A.2d 216

J. L. QUERNER TRUCK LINES, INC., a corporation, Plaintiff-Appellant, v. SAFEWAY TRUCK LINES, INC., a corporation, Defendant-Respondent.

No. A--759.

Superior Court of New Jersey Appellate Division.

Argued Jan. 3, 1961.

Decided Feb. 24, 1961.

Horace G. Davis, Jersey City, for appellant.

Joseph C. Paul, Newark, for respondent (Henry M. Grosman, Newark, attorney; Mr. Paul, Newark, on the brief).

Before Judges GOLDMANN, FOLEY and NADELL.

The opinion of the court was delivered by

NADELL, J.C.C. (temporarily assigned).

Plaintiff appeals from the dismissal of the complaint at the conclusion of all the testimony in a case tried with a jury in the Superior Court, Law Division.

The suit was brought to recover property damages sustained to plaintiff's trailer, which was driven under a bridge with insufficient clearance to permit the trailer to pass through. Plaintiff Querner owned the trailer; one Lash owned the tractor. Lash leased the tractor to Querner, and Querner leased the entire equipment, tractor and trailer, to defendant Safeway. At the time of the accident Lash was driving the equipment, accompanied by one Salvato, who directed Lash as to the route to be taken to return to defendant Safeway's trucking terminal. Lash was employed and paid by Querner. Salvato was employed and paid by Safeway. Plaintiff Querner was paid one lump sum by Safeway for the use of the tractor, trailer and driver, Lash.

D'Amato, Safeway's dispatcher, directed Lash to go to New York to pick up a load of meat and return to the Safeway Terminal at Weehawken and then drive the load to Chicago. D'Amato sent Salvato, a young man of 18, to accompany Lash and help load the truck in New York. As Lash was from Texas and not familiar with the route, D'Amato did not give him the New York address where the truck was to pick up the meat, but instead gave it to Salvato, who was to direct Lash as to the route to and from New York.

Lash testified that on the return trip Salvato told him to make a right turn into a street on which an overpass was located. He said he asked Salvato if the trailer would clear the underpass and Salvato responded in the affirmative, adding that he had been under it before. The truck (12 3 high) failed to clear the underpass by approximately one foot. Lash estimated his speed at the time of impact as 15 to 20 miles an hour. He said he observed no signs either on the road or the bridge indicating clearance height or a warning. Lash, who had been driving tractor-trailers for about seven years prior to the date of the accident, admitted that he didn't judge the comparative heights of the trailer and underpass 'too well,' but that this was due to his reliance on the representations and experience of Salvato in regard to what was unfamiliar territory.

Salvato testified that his job was completed when he directed Lash through the Holland tunnel, just prior to the accident. He admitted that, in response to a request by Lash for directions, he informed Lash he could 'make a right turn at any block.' He also testified that one block before the bridge there was a sign about two feet wide with a caption reading: 'All Trucks Make a Left-Hand Turn. Low Bridge.' He neither told Lash to turn left, nor mentioned the sign. He said that at the time of impact the truck was traveling at about 30 to 35 miles an hour.

Vincent D'Amato, a dispatcher for Safeway Truck Lines, testified that Salvato was hired as a 'sight-man' for just one day. The New York address was given to Salvato, not to Lash. On cross-examination the following colloquy occurred 'Q. Mr. D'Amato, if the truck that he (Lash) was going to be on didn't know its whereabouts, or how to get to any particular destination, Mr. Salvato did the directing. Isn't that a fact? A. That could be. Yes, sir.

'Q. In this case it was the fact, wasn't it? A. I don't know the conversation--I said before that I had no conversation with Lash. I assigned a man and where they were to go to pick up the load, Pier 25 North River.

'The Witness: I didn't give it (the New York address) to Lash. I gave it to the sight-man who was going with him.

'The Court: You gave it to Salvato? You gave Salvato the address?

'The Witness: That's right.

'The Court: He was the man who was to see that the truck got over to New York, is that it?

'The witness: Yes, sir.

'The Court: And see that it got back to the--

'The Witness: Terminal, yes.'

The pretrial order states:

'* * * As a result of the negligence of defendant's employee who was riding on the truck, in choosing a route which he knew or should have known contained overhead obstructions which would not clear the trailer, or in negligently assigning as such driver of the equipment one who did not possess knowledge of the route or routes to be taken, the defendant proximately caused an accident to occur. * * *'

Apparently the theory that defendant was negligent in assigning Lash as driver of the equipment has been abandoned. Plaintiff provided Lash as the driver of the equipment under the lease agreement, knowing that he would have to drive in unfamiliar territory, or at least it should so have known. Furthermore, plaintiff now asserts, in disputing the ruling of the trial court that Lash was guilty of contributory negligence as a matter of law, that the acts of Lash were those of a reasonable and prudent person and that anything that was done to cause this accident was done solely through the acts of Salvato. Plaintiff's contention must be taken as supporting an abandonment of any claim that defendant was liable in assigning Lash to drive the equipment. In addition, it is clear that plaintiff is not relying for defendant's vicarious liability on any conduct of Lash. On the contrary, plaintiff asserts that Lash is free from negligence.

Accordingly, the plaintiff relies on two theories:

1. The negligence of defendant's employee, Salvato, who was riding on the truck, in choosing a route which he knew or should have known contained overhead obstructions which would not clear the trailer, proximately caused the accident, and as a result defendant is liable under the doctrine of Respondeat superior.

2. The leasing transaction constituted a bailment for hire and the bailee for hire is liable for his negligence.

I

It is axiomatic that:

'A motion for judgment of dismissal admits the truth of the plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom which is favorable to the plaintiff and denies only its sufficiency in law. And on a motion for judgment the trial court cannot weigh the evidence but must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor.' Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170, 113 A.2d 13, 17 (1955).

In any case in which reasonable men might honestly differ as to the conclusions to be drawn from the evidence, the issue should be submitted to the jury. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 410, 161 A.2d 69 (1960); DeRienzo v. Morristown Airport Corp., 28 N.J. 231, 236, 146 A.2d 127 (1958); Honey v. Brown, 22 N.J. 433, 438, 126 A.2d 354 (1956); Tua v. Modern Homes, Inc., 64 N.J.Super. 211, 217, 165 A.2d 790 (App.Div.1960).

We must therefore analyze the evidence to determine whether or not it is sufficient to raise issues of fact which must be submitted to a jury.

II

Essential to a bailment is that the property be turned over into the possession and control of the bailee. McFarland v. C.A.R. Corp., 58 N.J.Super. 449, 452, 156 A.2d 488 (App.Div.1959); 8 C.J.S. Bailments § 15(a), p. 248 (1938); Marsh v. American Locker Co., Inc., 7 N.J.Super. 81, 72 A.2d 343, 19 A.L.R.2d 326 (App.Div.1950), affirmed 6 N.J. 81, 77 A.2d 315 (1950); Brown, Personal Property, 225, 230 (1936). See Gilson v. Pennsylvania R.R. Co., 86 N.J.L. 446, 92 A. 59 (Sup.Ct.1914), affirmed 87 N.J.L. 690, 94 A. 1102 (E. & A.1915). Physical control of the property as well as intent to exercise control are essential elements of possession. See Restatement, Torts, § 216, p. 551 (1934).

The liability of a general employer for the torts of his employee acting within the scope of his employment continues despite the fact that the special employer (defendant-rentee of the equipment and operator) was controlling the details of the work at the time the tort occurred. Viggiano v. William C. Reppenhagen, Inc., 55 N.J.Super. 114, 118, 150 A.2d 40 (App.Div. 1959). As long as the work being done is within the general contemplation of the supplier of the equipment and operator, the performance of that work is considered as in furtherance of the interests of the general employer in the sense that it is carrying out the latter's contractual obligation. Ibid., 55 N.J.Super. at p. 119, 150 A.2d at p. 43. This is not less so because the operator is following directions of the so-called special employer in respect to work details. Ibid. Thus, in determining liability to third persons on the basis of Respondeat superior, the control exercised by the special employer is not dispositive. The crucial issue is whether the employee was furthering the interests of his general employer. This is not to say that for purposes of determining whether there is a bailment, control is not the crucial issue.

In the case at bar, viewing the evidence in a light most favorable to plaintiff, it might be inferred that there was a division of control to the extent that Salvato, defendant's servant, partly controlled the equipment since it was he who directed which routes Lash should drive. The evidence does not permit an inference of any greater control. Thus, the primary inquiry is whether this measure of control exerted by defendant is sufficient to constitute a bailment.

It would appear that the only sense in which defendant acquired possession of the...