Okin v. Essex Sales Co.

• Decision Date: 31 January 1927
• Docket Number: Nos. 71, 72.,s. 71, 72.
• Parties: OKIN v. ESSEX SALES CO. KATZ v. SAME.
• Court: New Jersey Supreme Court

135 A. 821

OKIN

v. ESSEX SALES CO.

KATZ

v. SAME.

Nos. 71, 72.

Supreme Court of New Jersey.

Jan. 31, 1927.

(Syllabus by the Court.)

Appeals from Court of Common Pleas, Essex County.

Actions by William Okin and by William Katz against Essex Sales Company tried together. Judgments for defendant, and plaintiffs appeal. Affirmed.

Argued October term, 1926, before GUMMERE, C. J., and TRENCHARD and MINTURN, JJ.

Aaron Marder, of Newark, for appellants.

McCarter & English, of Newark (Augustus C. Studer, Jr., of Newark, of counsel)for respondent.

TRENCHARD, J. These suits were tried together. The accident involved in both occurred at the corner of Northfield road and Gregory avenue, West Orange, on July 13, 1925, about 10 o'clock in the morning. The automobile, driven by the plaintiff Katz, and owned by the plaintiff Okin, was proceeding east on Northfield road toward Newark, and was struck by a motorcycle going south on Gregory avenue; the motorcycle being owned by the defendant corporation.

At the conclusion of the case, the trial court directed verdicts in favor of the defendant, on the ground that it was shown by uncontradicted proof that Martin, who at the time of the accident was driving the defendant's motorcycle, had departed from the instructions given him, so that the relation of master and servant did not exist at the time of the collision, sufficient to hold the defendant on the doctrine of respondeat superior.

The legal propriety of that ruling is the only question before the court on this appeal. Our examination of the record satisfies us that the ruling was right.

Of course, proof of defendant corporation's ownership of a motorcycle driven on a public highway raises a presumption of fact that such motorcycle was in the possession of the defendant through its servant or agent, the driver, and that such driver was acting within the scope of his employment. But both or either of these presumptions may be overcome by uncontradicted proof to the contrary; and, if so overcome by uncontradicted proof that the motorcycle was not being used by the owner's servant or agent within the scope of his employment, then a motion for a direction of a verdict for the defendant owner will be granted. Tischler v. Steinholtz, 99 N. J. Law, 149, 122 A. 880; Mahan v. Walker, 97 N. J. Law, 304 117 A. 609; Cronecker v. Hall, 92 N. J. Law. 450, 105 A. 213; Missell v. Hays, 86 N. J. Law, 348, 91 A. 322; Doran v. Thomsen, 76 N. J. Law, 754, 71 A. 296, 19 L. R. A....