N. Rothenberg & Son, Inc. v. Nako

• Decision Date: 27 March 1958
• Docket Number: No. A--36,A--36
• Citation: 49 N.J.Super. 372,139 A.2d 783
• Parties: N. ROTHENBERG & SON, Inc., Plaintiff-Respondent, v. Robert NAKO, T/A R. & N. Truck Leasing Company, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 372

49 N.J.Super. 372

139 A.2d 783

N. ROTHENBERG & SON, Inc., Plaintiff-Respondent, v. Robert NAKO, T/A R. & N. Truck Leasing Company, Defendant-Appellant.

No. A--36.

Superior Court of New Jersey.

Appellate Division.

Argued Feb. 24, 1958.

Decided March 27, 1958.

John Tomasin, West New York, argued the cause for defendant-appellant (Victor P. Mullica, Union City, attorney).

Louis Adler, Bayonne, argued the cause for plaintiff-respondent (Adler & Adler, Bayonne, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

The defendant appeals from a judgment of the Hudson County District Court in an action by plaintiff for the loss of certain goods when a tractor-trailer, registered in the name of the defendant, but operated by one Tatsya Ariyasu, was involved in an accident. The driver was killed and the goods damaged as a result of the accident. The complaint is in two counts. The first alleges breach of the contractual obligation between the plaintiff as owner of the goods and the defendant as carrier for failing to deliver the goods at destination in New York after accepting them in Chicago. The second count alleges negligence resulting in the loss of the goods while in transit.

The plaintiff was the consignee of bales of used clothing and bags of used shoes to be transported from Chicago to New York. The shipper, Samuel Portnoy, in answer to interrogatories, stated that on October 18, 1955 he called 'Beejay's Filling Station and asked them to send me a truck out to haul some merchandise to New York * * * A man came out with the truck. My man loaded the truck and then I made out a bill of lading and when I asked to put down the name of the company receiving it, the man told me to put down R. & N. Truck Leasing Company. After the bill of lading was made out, the man got in the truck and drove away.' The bill of lading, received in evidence, was a 'straight bill,' non-negotiable, and stated the consignee was the plaintiff, 'N. Rothenberg and Son.' The signature of 'T. Ariyasu' appears across the face as does the signature of 'Sam Portnoy,' the shipper. The name of 'R. & N. Truck Leasing Company, 1700 Tonnelle Avenue, North Bergen, New Jersey,' appears as having received the goods.

When asked further concerning the identity of the driver and the circumstances surrounding the shipment of the goods, Portnoy answered, 'The driver of the truck was unknown to me. He was a Japanese fellow whom I had never seen before and when I made out the bill of lading, he told me that he was from R. & N. Truck Leasing Company.' Portnoy paid Ariyasu $100 by check made out to Ariyasu as part payment for the trucking. This check was subsequently cashed by Ariyasu before he left Chicago on his fateful journey. The balance of the transportation charges was, according to the bill of lading, to be paid by the consignee upon receipt of the goods.

Joseph G. Szapor, another trucker, testified in behalf of the defendant that three months prior to the accident he knew that Ariyasu was in the trucking business for himself. He said that on October 15, 1955 he contracted with Ariyasu to haul some freight for him to Toledo, in Ohio, and to Chicago and paid him for his services. He further said that defendant Robert Nako was in no way involved in any agreement he had made with Ariyasu. Szapor said that when there was more freight to haul than he could truck, he would occasionally arrange with Ariyasu to do the trucking. When Ariyasu arrived in Chicago soon after October 15, Szapor said he met him at a truck stop. Szapor testified that Portnoy had 'contracted' with him to truck the plaintiff's merchandise to New York but as he, Szapor, had another trucking job, Portnoy (at Szapor's suggestion) hired Ariyasu to haul the clothing to New York. Because Ariyasu was unfamiliar with the shipper's location in Chicago, Szapor accompanied him to Portnoy and was present when Portnoy hired Ariyasu, signed the bill of lading and paid him $115 (sic) for an advance payment on the trucking.

The testimony of Szapor is particularly pertinent with regard to the circumstances surrounding the preparation of the bill of lading.

'Q. Do you know how Mr. Portnoy obtained the name of R. & N. Truck Leasing Company on that invoice or bill of lading that he had?

'Mr. Adler: Objected to.

'The Court: I will allow it.

'A. Mr. Ariyasu went out in the cab and he got the identification card and came in and filled the top out there.

'The Court: He had the ownership card?

'The Witness: Yes.

'Q. Then he filled that out on the top. Is that it? A. Right.

'Q. Now were you present when Mr. Portnoy paid Mr. Ariyasu? A. Yes.'

Szapor was later hired by Portnoy to recover the water-soaked clothes from the submerged trailer in which they were originally shipped. The goods were eventually hauled to New York and delivered to the plaintiff. In this regard, the facts are somewhat contradictory, for Portnoy in his answers to interrogatories stated that he bought the damaged goods for $500.

The defendant, Robert Nako, testified to the circumstances under which Ariyasu was using the vehicle registered in his name. In January and in August 1955 Nako discussed with Ariyasu, his friend of several years, the purchase of a tractor and trailer for Ariyasu so that the latter could engage in the trucking business for himself. Separate arrangements were concluded for a tractor and for a trailer. Nako in August accordingly arranged to purchase a tractor (a 1952 used model) and, as Ariyasu had no credit standing, Nako borrowed $2,029 from a finance company toward its purchase, mortgaging another tractor of his own as security. Nako took title to the newly purchased tractor in his own name because 'the finance company wanted it that way.' On August 19, 1955 the newly purchased tractor was registered in Nako's trade name and thereafter displayed New Jersey license plates. Nako testified that it had been agreed with Ariyasu that the latter would make the payments on the newly purchased tractor, the payment book of the finance company was given to Ariyasu, and he made the payments up to the time of his death.

With regard to the trailer for Ariyasu to go with the tractor, Nako stated that he agreed with Ariyasu, also in August 1955, that he would sell Ariyasu his own 1949 Trailmobile trailer, later involved in the accident, and Nako would then purchase a new Fruehauf trailer for himself. The value of the older trailer at that time was $3,000 and the balance due on the new trailer was $3,045.50, which it was agreed Ariyasu would pay by way of discharging his obligation to Nako for the Trailmobile. Ariyasu made the stipulated payments until the time of his death, but title to the Trailmobile trailer was retained in Nako's trade name and so registered.

Nako further testified that from the time in August 1955 that Ariyasu got possession of the tractor-trailer, he, Nako, never had possession of it, and never exercised any authority or control over Ariyasu, his customers, his charges for trucking, or the vehicle itself. He stated that he never had dealt with Sam Portnoy before the accident, nor with the plaintiff.

The district court judge, in an oral opinion, found that defendant had no Interstate Commerce Commission franchise, and that 'defendant by his action permitted the decedent to hold himself out as a representative of the defendant company.' He rendered judgment for the plaintiff for $4,744, representing the sum of $5,244, less $500 for the salvage of the merchandise.

The basic issue to be resolved on this appeal is whether there is sufficient legal relationship between the defendant Nako, the registered owner of the vehicles (tractor-trailer), and Ariyasu, the deceased driver, as to impose liability, Ex contractu or Ex delicto, on the defendant.

The plaintiff does not strongly argue that the evidence warrants a finding that Ariyasu was acting as a servant or agent of the defendant under any Express agency relationship when he received the merchandise from Portnoy and assumed to truck it to plaintiff. Cf. Lacombe v. Cudahy Packing Co., 103 N.J.L. 651, 137 A. 538 (E. & A.1927). The trial judge predicated his judgment on a finding of apparent agency and made no finding as to express agency. We therefore find, in the exercise of our original jurisdiction, no express agency as a fact. R.R. 1:5--4(b). In the instant case, moreover, the defendant raises no question concerning the issue of whether the plaintiff-consignee is the proper party to maintain this action, and therefore we will assume that plaintiff did have title, suffered the loss and is entitled to sue.

An action by a consignee can be maintained in tort for negligence resulting in destruction of the goods in transit. Schlosser v. Great Northern Ry. Co., 20 N.D. 406, 127 N.W. 502 (Sup.Ct.1910); Railway Express Agency v. Huntress, 51 A.2d 379 (Mun.Ct.App.D.C.1947); Goddard, Outlines, Bailments and Carriers (2d ed. 1928), § 408, p. 374; 13 C.J.S. Carriers § 249 a, p. 509, note 22; § 249 c(2), p. 512. It has also been held that the consignee can maintain an action Ex contractu on the theory that the consignor in making the contract for the delivery of the goods acts as agent for the consignee. Kelsea v. Ramsey & Gore Manufacturing Co., 55 N.J.L. 320, 323, 26 A. 907, 22 L.R.A. 415 (E. & A.1893); Griffith v. Ingledew, 6 Serg. & R. 429, 9 Am.Dec. 444, 449 (Pa.Sup.Ct.1821); Krulder v. Ellison, 47 N.Y. 36, 7 Am.Rep. 402 (Ct.App.1871); Goddard, op. cit., supra, § 407, p. 373; 9 Am.Jur., Carriers, § 823, p. 933, n. 10; 13 C.J.S. Carriers § 249 e, p. 513, note 77. Therefore, if the dealings between Portnoy and Ariyasu were such as to make the latter the apparent or ostensible agent of the defendant, plaintiff may take advantage thereof.

As noted, the plaintiff's complaint is in two counts and alleges negligence and breach of contract. Considering the tort aspect of the action, and...