I am unable to agree with the majority of the court. Some of the testimony was in conflict but there was sufficient free from dispute to establish the salient and determining facts. In my judgment such evidence conclusively discloses a situation out of which no liability on the part of appellant can be spelled.
This case was concededly tried upon the premise that the liability of appellant arose out of its status as a common carrier of passengers. Such a carrier is under the duty of using a high degree of care for the safety of its passengers. This duty is assumed by the carrier at the inception of the carrier-passenger relationship and cannot be delegated by it to any other person or carrier. It continues to the end of the journey unless sooner terminated by the voluntary act of the passenger. Kelson v. Public Service Railroad Co., 94 N.J.L. 527 (E. A. 1920); Little v. Dusenberry, 46 N.J.L. 614,643 (E. A. 1884). However, while a carrier remains liable during the whole of the passage, even though a part thereof is on the vehicle of another carrier, such liability is predicated upon the theory that the connecting carrier is the agent of the first carrier. 3 Shearman Redfield, Negligence (1941), § 510, p. 1297. In order for respondent to recover, an essential element is evidence sufficient to warrant presentation to a jury from which may be established the existence of an agency relationship between appellant and the driver of the army bus who it is alleged was negligent in the operation thereof. This, in turn, depends upon the power of *Page 466 Barner, the agent of the appellant on the scene, to engage the army bus and its driver. Respondents attribute no negligence to Barner. Compare Conway v. Pickering, 111 N.J.L. 15 (E. A. 1933).
Agency has been defined as "the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Restatement, Agency, § 1. Refer also to 2 Am. Jur., "Agency," § 2, p. 13. The test is whether there was from the employer an express or implied authority for doing that which was done out of which the harm came. Blackman v. Atlantic City, etc., R.R. Co., 126 N.J.L. 548,549 (E. A. 1941). Where a servant, even in the execution of his general duty, uses an instrumentality not expressly or impliedly authorized by the master, and harm results, the master is not liable. Blackman v. Atlantic City, etc., R.R. Co.,supra, at p. 461. It is necessary that there be not only the status of agency but also activity by the servant or agent within the assigned task and within the scope of the agency. Muckin v.Hubbs, 128 N.J.L. 395, 397 (E. A. 1942).
The case of Dispatch Printing Co. v. National Bank ofCommerce, 109 Minn. 440, 124 N.W. 236 (Sup. Ct. of Minn. 1910), relied upon by the majority opinion, makes this necessity quite clear. As pointed out in that opinion (at p. 239 of 124 N.W.) authority of an agent may be express, namely that which the principal directly grants, which may include by implication all such powers as are necessary and proper for effectuating the purposes for which the agency was granted; or such authority may be apparent, which arises from the conscious permission by the principal of acts beyond those expressly granted. In both classes it will be noted that the manifestation of consent by the principal is necessary, whether by necessary implication from the overt acts of the principal or by direct expression of consent.
Measured by this test it becomes clear that appellant at no time consented to the engagement of the army bus. Barner testified without contradiction that he had been instructed *Page 467 to call his garage whenever he had a breakdown; that at the time in question after the wheel had fallen off his bus he got out and walked down the road to a hotel and telephoned his garage in Newark. He then stated that, while unsuccessful in his attempts to contact the garage by telephone, he reached one Zingler at his home by telephone. He characterized Zingler as "our dispatcher;" "more or less a boss or foreman." It does not appear in the evidence to the contrary.
Zingler testified, also without contradiction, that "I told the driver to go back to his bus and wait; that I would dispatch a bus either out of the garage or turn one back that was supposed to be at the diner — they stop at the diner on the way home for coffee on the night shift — that I would turn one of those buses around." He further testified "I dispatched a bus out of the garage." To "dispatch" means to send off or away with promptness and speed, Webster's New International Dictionary, 2d Ed. 1947. In this posture of the evidence Barner's lack of authority was clear. The conflict of evidence was as to whether or not he actually engaged the army bus, but such conflict, even if resolved in the affirmative, would not operate to create liability in the face of specific instructions to "go back to his bus and wait." For the same reason it is clear that no basis exists for holding that the engagement of the army bus might be implied to be necessary and proper as a means of effectuating the purposes for which Barner's agency as a bus driver was created. "Authority exists only when, from the manifestations of the principal and the happening of events of which the agent has notice, the agent reasonably believes that the principal desires him to act." Restatement, Agency, § 38. Such manifestations in the instant case were to the contrary and it is clear that Barner had no authority to act.
Further, the postulate upon which Barner is alleged to have engaged the army bus is predicated in the majority opinion upon the assumption of fact that there existed an emergency and that under the circumstances there arose the necessity of the engagement of a jury to "assess the facts and determine whether defendant's operator had exceeded his authority." *Page 468 Conceding the postulate, arguendo, the rule as stated by theRestatement of Agency, § 79, is as follows:
"Unless otherwise agreed, an agent is authorized to appoint another agent for the principal if:
* * * * * * * * (d) an unforeseen contingency arises making it impracticable to communicate with the principal and making such an appointment reasonably necessary for the protection of the interests of the principal entrusted to the agent."
Refer also to 35 Am. Jur., "Master and Servant," § 164, p. 592; Anno. (1932) 76 A.L.R. 963. It does not follow that the rule is applicable in the instant case.
It will be observed that the implication of authority in an agent to engage another agent in an emergency rests upon the inability to obtain instructions from the principal. This qualification is expressed in the Restatement of Agency, supra. But in the instant case there was not only opportunity to obtain such instructions but they were actually sought and received. Assuming but not conceding that the delay in the arrival of the relief bus might have suggested an emergency to Barner, there existed the opportunity for him to again contact his principal for instructions in the premises. He had been in contact with Zingler and knew not only the location of the nearest telephone but also Zingler's whereabouts. Appellant's base of operations had been contacted and assurance given that aid would be forthcoming. Barner's duty, if he conceived the situation to be serious, was again to contact his principal, not to act upon his own initiative and without orders. This being so, the factors invoking the so-called rule of "agency by emergency" did not exist in the instant case.
It is repeated, the posture of the proofs at the conclusion of the case was such that there was sufficient that was free from dispute to establish the salient and determining facts. For the reasons hereinbefore set forth, it devolved upon the court to declare the judgment which the law imposes and a verdict should have been directed for the appellant. I would reverse the judgment. *Page 469
Such a conclusion forecloses the resort to the remaining errors relied upon in the statement of questions involved and points suggested therein and argued. Therefore no expression is made in relation thereto.
I am authorized by Mr. Justice Oliphant to state that he concurs in the views expressed herein.
For affirmance — Chief Justice VANDERBILT, and Justices CASE, HEHER, WACHENFELD and ACKERSON — 5.
For reversal — Justices OLIPHANT and BURLING — 2.