Vaniewsky v. Demarest Bros. Co.

• Decision Date: 19 December 1929
• Docket Number: No. 421.,421.
• Citation: 148 A. 17
• Parties: VANIEWSKY v. DEMAREST BROS. CO. et al.
• Court: New Jersey Supreme Court

148 A. 17

VANIEWSKY

v. DEMAREST BROS. CO. et al.

No. 421.

Supreme Court of New Jersey.

Dec. 19, 1929.

Kalisch, J., dissenting.

Appeal from District Court, Bergen County.

Action by Isaac Vaniewsky against the Demarest Bros. Company, a New Jersey corporation, and another. Judgment for plaintiff against the defendant first named, and it appeals. Reversed and rendered.

Argued January term, 1929, before TRENCHARD, KALISCH, and LLOYD, JJ.

Harley, Cox & Walburg, of Newark, for appellant.

Seufert & Elmore, of Englewood, for respondent.

LLOYD, J. This action was brought by Isaac Vaniewsky to recover for the damage done to a building owned by him in the borough of Closter by a truck of the defendant company running into and knocking down a portion of the walls; the truck at the time being operated by John Dotson, president of Demarest Bros. Company, and one of the defendants. The allegation of negligence was that "said defendant John Dotson, and said defendant, Demarest Bros. Company, by its agent and servant John Dotson, did carelessly and negligently drive said truck at a high, dangerous and excessive rate of speed without having proper control thereof, without having the same in proper repair and without giving heed or attention to the manner of its driving and without using proper precautions with respect to property lawfully located on said highway."

The plaintiff's proofs simply established that the truck ran over the sidewalk and into the building and that at the time it was being driven by the defendant Dotson.

At the conclusion of plaintiff's proofs, motions for nonsuit were made on behalf of both defendants. These motions were refused. Defendant Dotson then testified that he was president of the company, that he was driving the truck at the time, and that he lost consciousness, in consequence of which he did not know what thereafter occurred. This comprises the whole of the testimony as to negligence.

At the conclusion of the entire case, a motion was made for the direction of a verdict in favor of both defendants on the grounds that, there was no proof of negligence and no proof of any negligent acts which were the proximate cause of the accident; as to the defendant Dotson that there was no proof of the allegation set forth in the complaints; and as to both defendants that the proofs showed that the accident was unavoidable. The court granted the motion as to Dotson, denied it as to Demarest Bros. Company, and thereupon awarded a judgment in favor of the plaintiff against that company for the amount of the plaintiff's damages.

It will be observed that the whole negligence, if any, alleged or proved in the case was in the operation of the truck by Dotson as the agent of the Demarest Bros. Company. It is therefore entirely apparent that no liability could exist as to the company unless by and through the negligence of Dotson.

The case was heard by the judge sitting without a jury, and we therefore have the anomalous situation of the judge sitting as a jury finding as a fact that no negligence existed in the case and yet rendering a verdict for the plaintiff against one of the defendants. With what show of logic or reason such a result could have been reached we are unable to discover.

From the rulings of the judge directing a verdict for the defendant Dotson, the plaintiff does not appeal. The Demarest Bros. Company appeals from the judgment rendered against it.

The question here involved was discussed by Justice Katzenbach in the case of Dunbaden v. Castle's Ice Cream Co., 103 N. J. Law, 427, 135 A. 886, though in that case the precise point did not arise. That action was against master and servant with a verdict against the master only, but with no finding by the jury as to the servant. It was therefore said that the case as against the servant remained yet undetermined. To like effect was Feury v. Reid Ice Cream Co., 126 A. 462, 2 N. J. Misc. R. 1008.

These cases, however, are far from controlling here. What different juries may do in different cases, or possibly in the same case on different trials, is by no means analogous to the ease where, as here, the action is one against both defendants in which a single complaint is filed alleging the negligence of the driver as the basis of liability against both driver and master and a verdict is rendered at one and the same time exonerating the servant and holding the master. In the case of New Orleans & Northeastern Railroad Co. v. Jopes, 142 U. S. 18, 12 S. Ct. 109, 111, 35 L. Ed. 919, it was said by that high tribunal that: "It would seem on general principles that, if the party who actually causes the injury is free from all civil and criminal liability therefor, his employer must also be entitled to a like immunity." In practice the great weight of authority is as stated in 39 C. J. 1307, that, "where a master and servant are sued jointly in an action based solely on tortious conduct of the servant, and the servant is acquitted, there can be no verdict against the master. A verdict against the master and acquitting the servant is equivalent to a finding that no cause of action exists and will not support a judgment against the master; and such a verdict should be set aside or judgment for the master entered notwithstanding the verdict," citing a long line of cases, beginning with the case able noted, and continuing with like rulings in numerous states.

The liability of the servant is primarily due to his wrongful act; that of the master is derivative and predicated wholly upon such primary liability. Courts are for the administration of justice; it is their duty so to administer the law as to effectuate justice within the bounds of adjudicated rules. By implication the judge in the present case found that there was no negligence; none in the servant, because it acquitted him of all responsibility, and by implication, therefore, none in the master because such negligence could only exist if the servant had been guilty. It would be a travesty on justice if courts were powerless to set aside a result so illogical and unjust.

If it be suggested that the plaintiff should not suffer because of the wrongful action of the judge, the answer is that he could have himself appealed from the finding in favor of Dotson. A finding which deprives him of the benefit of the liability of the servant, on which alone the liability of the master could be predicated, and a similar finding that such master was nevertheless liable, could certainly be brought before this court for review upon the same logical principles that we are now invoking on the legal phases of the case as they are here presented. If he neglects to avail himself of the means to protect his rights, he cannot complain of the final result which deprives him of all remedy.

The judgment is set aside and judgment rendered for the defendant Demarest Bros. Company.

KALISCH, J. (dissenting). I find myself unable to concur in the views expressed in the prevailing opinion of the court. The ground of my dissent, stated as succinctly as is practicable, is predicated chiefly upon the uncontroverted fact, as disclosed by the evidence, that the relation of master and servant did not exist between Dotson, in whose favor the trial judge gave judgment, and the Demarest Bros. Company, a corporation, against which company judgment was awarded. Dotson was not the servant of this company, but was its president, and at the time of the happening of the accident, he was engaged in the execution of an agency in the conduct of the affairs of his company, by driving one of its trucks on behalf of and for the benefit of the company's business. In performing such service he was the alter ego of the company and not its servant.

The doctrine of respondeat superior, therefore, invoked by the learned author of the prevailing opinion, is obviously inapplicable to a situation where the wrongdoer is the principal, as is the case here. The state of demand filed by the plaintiff, in the district court, sets forth in the first count thereof, in addition to the allegation of negligent operation of the truck, the further allegation that the truck was being operated "without having the same in proper repair."

It has been repeatedly held by the decisions of this court that pleadings in the district court need not be as formal as they are required to be in the higher courts. The fact that the state of demand alleges Dotson to be the agent and servant of the defendant company was a matter of cautious pleading to meet either a relationship of master and servant, or that of principal and agent, as might be developed by the testimony.

Even if this were a case in which the relation of master and servant existed between the defendants, the fact that the truck jumped the curb,...