Leuis v. Nat'l Cash Register Co.

• Decision Date: 30 June 1913
• Citation: 87 A. 345,84 N.J.L. 598
• Parties: LEUIS v. NATIONAL CASH REGISTER CO.
• Court: New Jersey Supreme Court

87 A. 345

84 N.J.L. 598

LEUIS

v. NATIONAL CASH REGISTER CO.

Supreme Court of New Jersey.

June 30, 1913.

Appeal from Circuit Court, Hudson County.

Action by Marie Leuis, by her next friend, against the National Cash Register Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued February term, 1913, before GUMMERE, C. J., and BERGEN and KALISCH, JJ.

Augustus C. Streitwolf, of New Brunswick, for appellant.

Hamill and Cain, of Jersey City, for appellee.

KALISCH, J. The plaintiff, an infant of tender years, recovered a verdict for $2,500 as damages against the appellant, the defendant below, for injuries sustained by her as a result of being run into by an automobile propelled and operated by one Pearl Kaler along a public street of Jersey City while engaged in his master's business.

The appellant obtained a rule to show cause in the court below why a new trial should not be granted upon the ground that the damages awarded were excessive, and reserved to itself two exceptions, embodied in the rule, one of which was to the refusal of the court to grant a motion for a nonsuit on the ground that there was nothing to show that the defendant furnished the automobile or authorized or even knew of its use; and the other that it was not shown that the defendant's alleged agent failed to exercise any duty that he owed to the plaintiff. Upon a hearing of the rule the trial judge gave the plaintiff the option to accept and enter a judgment for $1,250 to save the rule from being made absolute; and, the plaintiff having consented to such reduction, judgment was entered therefor. The two exceptions reserved and upon which the appellant has assigned errors raise the question whether there was any evidence to be submitted to the jury and from which the jury might have reasonably found that Kaler was the agent of the appellant and was using the automobile in his master's business at the time the plaintiff was injured, it being conceded that the appellant knew that a horse and wagon were being used by Kaler in the transaction of the appellant's business, and that Kaler was guilty of negligence in the running and operating of the automobile at the time the plaintiff was injured.

The appellant having entered upon its defense, it becomes a matter of no consequence whether or not, at the time the motion for nonsuit was made and denied, the appellant was entitled to have prevailed, if it appears that there was evidence anywhere in the whole case, from whatever source derived, which would have warranted the findings of the jury. Esler v. Camden, etc., R. Co., 71 N. J. Law, 180, 58 Atl. 113; Carey v. Hamburg-American Packet Co., 72 N. J. Law, 50, 60 Atl. 179; Bostwick v. Willett, 72 N. J. Law, 21, 60 Atl. 398; Van Cott v. North Jersey St. R. Co., 72 N. J. Law, 229, 62 Atl. 407.

One of the chief defenses relied on by the appellant to the plaintiff's right to recover was its claim that Kaler was an independent contractor. Kaler was called as a witness for the defense, and his testimony taken in conjunction with the contract made between him and the appellant, and which contract was offered in evidence by the appellant, afforded an ample basis for the inference that he was the agent of the appellant and was engaged in the appellant's business at the time the accident occurred. By the contract it appears that the appellant "constitutes and appoints P. A. Kaler of New York City as sales agent for its cash registers and other products in New York territory No. 20," and then follows a description of the territory, which includes the place where the accident happened. The contract then provides that Kaler was to devote his whole time and best endeavors to the business of the...