Mehan v. Walker

• Decision Date: 19 June 1922
• Docket Number: No. 108.,108.
• Citation: 117 A. 609
• Parties: MEHAN v. WALKER.
• Court: New Jersey Supreme Court

117 A. 609

MEHAN

v. WALKER.

No. 108.

Court of Errors and Appeals of New Jersey.

June 19, 1922.

(Syllabus by the Court.)

Gummere, C. J., and Swayze, Bergen, Katzenbach, and Ackerson, JJ., dissenting.

Appeal from Supreme Court.

Action by Caroline Mehan, administratrix, etc., against Elizabeth Walker. From judgmerit for plaintiff, the defendant appeals. Affirmed.

Harry Heher, of Trenton, for appellant.

Martin P Devlin, of Trenton, for respondent.

WHITE, J. This is an appeal from a judgment of the Supreme Court in favor of the plaintiff, whose intestate, Mehan, while riding his bicycle on a public highway, was killed in a collision with defendant's automobile driven by her son-in-law, Buckley. Upon a rule to show cause all questions were disposed of except those relating to whether Buckley was or was not, at the time of the accident, the servant (in a legal sense) of the defendant, and acting within the scope of his employment. This question the learned trial judge left to the jury, overruling defendant's motion for a nonsuit and also her motion for a directed verdict in her favor, and because of these two alleged errors the appeal is taken.

574, and cases there cited) the only evidence up to that time connecting the defendant with the accident was supplied by plaintiff's agent, who testified to a conversation with the defendant after the accident as follows:

"I told her I had learned she was the owner of the car that had caused the accident, and she said yes, she owned the car, and she knew about it, and Mr. Buckley, her son-in-law, was out with the mechanic trying the car out; that it had been in the repair shop, and she had it repaired, and they were out on the road testing it out; that Mr. Buckley and the mechanic were out with the car after the repairs had been made to try it out."

It is urged that this statement by the defendant was not except as to her ownership of the car, evidential, because obviously it was "hearsay"; the defendant not having been present at either the repair shop or at the trying out. The difficulty with this point is that the essential part of the statement, viz., that defendant was the owner of the car, was admittedly evidential. Upon that point defendant was speaking from her own knowledge. Standing alone, that one fact was sufficient. This court in Missell v. Hayes, 86 N. J. Law, 348, 91 Atl. 322, in discussing Doran v. Thomsen, 76 N. J. Law, 754, 71 Atl. 296, 19 L R. A. (N. S.) 335, 131 Am. St. Rep. 677, where it was held that a verdict for defendant should have been directed, said:

"The only element in the case tending to show that the daughter was acting as the servant of the father was the bare fact that the father owned the auomobile, which, being personal property, was, presumably, in the absence of evidence to the contrary, in his possession or the possession of his servant at the time of the accident, possession being the badge of ownership of personal property. This presumption, however, in that case was overcome by the uncontradicted proof that in fact the automobile was not in the possession of the owner or his servant, but that on the contrary it was in the possession of a third party (who happened to be his daughter) who was using it for her own pleasure and the pleasure of her friends, and not upon the owner's business."

And again in Deunery v. Great Atlantic & Pacific Tea Co., 82 N. J. Law, 517, 81 Atl. 861, 39 L. R. A. (N. S.) 574, adopting the language of Lord Denman in Joyce v. Capel, 8 Car. & P. 370, this court said:

"Evidence that the wagon which ran over plaintiff was marked with defendant's name was sufficient to justify the inference that defendant was its owner, and such inference established prima facie that defendant was in possession and control of the wagon by the driver, its servant."

This established doctrine, viz. that proof of defendant's ownership of an automobile being driven on a public highway raises a presumption of fact that such automobile is in the possession of the defendant through his servant the driver necessarily includes the presumption of fact that the servant in so driving the car is acting within the scope of his employment, for if he were not so acting the car would not in fact be in the possession of the owner, but would have been removed from such possession.

We think therefore that upon the proof of ownership alone, unaccompanied by any evidence tending to show possession at the time in any one else than the owner or his servant, or that the...