BENVENUTI v. ANGERSBACH, 111 N.J.L. 291 (1933)

168 A. 434

JOSEPHINE BENVENUTI ET AL., RESPONDENTS, v. EARL ANGERSBACH ET AL., APPELLANTS.

Court of Errors and Appeals.Submitted May 26, 1933 —
Decided September 27, 1933.

On appeal from a judgment of the Supreme Court, where the following per curiam opinion was filed:

“The defendant appeals from certain judgments recovered against him because of injuries suffered by the plaintiffs by reason of the negligent driving of an automobile on November 22d 1931. The defendant had borrowed the automobile from his brother and had requested his friend Alex Berta to drive it. There was testimony that Berta was the chauffeur for the day. The accident occurred while Berta was driving pursuant to request. The trial judge submitted the case to the jury on the theory that there was evidence from which they could find agency. This action is the sole ground of appeal before us, and there is no merit in it.

Page 292

“The defendant’s liability can exist only if there was control, direction and representation. The proofs show that the defendant had both control and direction, and further the fact that he had requested his friend to do the driving indicates that there was selection and representation. Cases where a person rides in a hired vehicle driven by an operator chosen by the owner are obviously inapplicable.

“`An agent is one who acts for or in the place of another by authority from him.’ 2 Corp. Jur. 420.

“The proofs examined indicate to us, as they must have to the jury, that Berta was driving the car in the defendant’s place and at his request.

“The judgment is affirmed.”

For the appellants, Collins Corbin.

For the respondents, Theo. Strong Son.

PER CURIAM.

The judgment under review will be affirmed, for the reasons expressed in the opinion filed in the Supreme Court.

For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 13.

For reversal — None.