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 Brothers 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 wrong-doer 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 *Page 39 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, crossed the sidewalk and ran into the front of the building, raised the presumption of negligent driving, or that the truck was out of repair, or both.
The testimony adduced in the cause most strongly supports the judgment against the appellant company. That the accident occurred in the manner as stated is admitted. The only defense offered and relied on by the defendants, was that the accident was inevitable. The conceded facts in the case, prima facie established a trespass quare clausum fregit. The front of the truck had entered the front of the building, of which the plaintiff was the owner.
The burden rested upon the defendants to satisfactorily explain, in order to exonerate themselves from liability, to adduce proof of such facts and circumstances as would constitute a legal excuse for the damage done. One of the allegations in the plaintiff's state of demand is, as has been stated, that the truck was out of repair. There is not a scintilla of testimony offered by the defendants, to be found anywhere in the case that meets the plaintiff's allegation that the truck of the defendant-appellant was out of repair, by a denial from either of them.
No attempt was made by the defendant company to show the truck was in good repair. The truck was in the custody of, and under the control of, the defendants at the time of the accident. It surely was incumbent upon them to explain the circumstance, why the truck jumped the curb and went over the sidewalk and struck, and entered the building of the plaintiff.
The defendants relied solely upon the assertion of Dotson, who was operating the truck, that by reason of an attack of acute indigestion, he lost consciousness, and therefore was unable to state how the accident happened. *Page 40
There is an utter absence of proof at what point, at any time, during the journey, Dotson became unconscious. Whether his illness began just at the moment when the truck jumped the curb, and was crossing the sidewalk, which naked circumstance would raise a permissible inference, in the absence of any explanation that the truck was out of repair; or whether Dotson became unconscious when he was made aware of his peril after the truck jumped the curb; or whether he was rendered senseless by force of the impact of the truck with the building, is not disclosed by the testimony; at any rate, they were factual questions for the trial judge to determine. It seems to me to be clear that under the evidence the trial judge was warranted in finding from the circumstance that the truck jumped the curb, that such abnormal movement was due to the truck being out of repair, and was not the result of negligent operation of it, by Dotson. As this was a permissible view that the trial judge could take under the evidence, he was warranted in exculpating Dotson of negligent conduct, and in finding the defendant company to have been negligent for permitting its truck, when out of repair, to be operated upon a public highway.
The foregoing views are based upon the theory adopted in the prevailing opinion, that the case is one of master and servant, to which the doctrine of respondeat superior is strictly applicable; but even upon that theory there is no incongruity in finding the servant not guilty, and holding the master liable, under the allegation in the state of demand, that the truck was out of repair.
In Goekel v. Erie Railroad Co., 100 N.J.L. 279, Chancellor Walker, who wrote the opinion for the Court of Errors and Appeals, in a headnote to the opinion, says: "Although two defendants are sued as for a joint tort, yet if the jury negative the negligence charged against one, a verdict against the other is not objectionable; but whether so in a case where respondeatsuperior applies and the master is responsible for the particular act of negligence of the servant, where both or neither would be liable, quaere." *Page 41
In Dunbaden v. Castles Ice Cream Co. (Court of Errors andAppeals), 103 N.J.L. 427, the late Mr. Justice Katzenbach, speaking for the court, at page 429, after discussing the rule ofrespondeat superior in a case of master and servant, as adopted in some jurisdictions, said: "In other jurisdictions it has been held that in an action against master and servant jointly, based solely upon the doctrine of respondeat superior, the master may be held liable, although the servant is exonerated. The reason assigned for this rule is that the plaintiff is entitled to the verdict given him by the jury, and for the failure of the plaintiff in obtaining a verdict against another equally responsible, the plaintiff may have a grievance, but the defendant adjudged responsible has none." The learned justice cites in support of this statement leading cases in some of our sister states.
Upon the assumption that the instant case is one of master and servant, to which the rule of respondeat superior applies, the important fact cannot be ignored, that counsel of defendants, appearing for both master and servant moved the judge to exonerate Dotson, which request was granted. He also moved to exonerate the master, which request was refused. We have therefore the rather peculiar situation of a master appealing from a judgment against him, because the trial judge did not also give a judgment against his servant, though it was at the request of the master's counsel that the servant was exonerated.
It is difficult for me to comprehend that even if in the finding of the trial judge, that the servant was not guilty, and the master guilty, there is a palpable incongruity under the doctrine of respondeat superior. I am unable to perceive how, and in what respect, the master was injuriously affected by the acquittal of the servant, since there was testimony from which the trial judge could properly find that the damage done to the plaintiff was the result of negligence, for which the master was answerable, as well as the servant.
Moreover, section 27 of the new Practice act provides: "No judgment shall be reversed or new trial granted on the *Page 42 ground of misdirection, or the improper admission or exclusion of evidence or for error as to matter of pleading or procedure, unless after examination of the whole case, it shall appear that the error injuriously affected the substantial rights of a party." Pamph. L. 1912, p. 382.
I am decidedly of the opinion that the facts in the instant case do not present the relationship of master and servant, but rather that of principal and agent — the agency, however, being of a higher type than such as is usually to be found in the ordinary relation of principal and agent. While it is true, that the doctrine of respondeat superior is recognized by distinguished authors of text books on the subject in hand, and by the decisions of our courts, to be applicable to the relation of principal and agent upon the grounds of public policy, it seems, however, that the application of that doctrine is limited to where the agency is of such a nature as has super-imposed upon it the relation of master and servant.
In American Soda Fountain Co. v. Stolzenbach, 75 N.J.L. 721, Judge Dill, speaking for the Court of Errors and Appeals (atp. 726), says: "The fallacy of the argument of the defendant in error is, that it fails to note the distinction between a corporate act performed through the intermediation of a person specially empowered to act as its agent or its attorney, and a like act done immediately by the corporation through its own administrative officers, its inherent agencies. The right of an artificial person to empower and employ agents or attorneys is identical with that of a natural person — each is governed alike by the law of principal and agent."
"The fundamental difference between the natural and artificial person is that the latter, even when not acting as a principal through the intermediation of an agent, acts through some agency inherent in its corporate form."
"Normally such agency inheres in the natural person who holds and administers the offices of the corporation. * * * Hence, when a corporation does not go outside of its corporate machinery and capacity in doing a corporate act, it is a confusion of terms and ideas to say that it is acting through *Page 43 an agent, when the fact is, that it is acting through an agency, and in chief."
"This distinction is not merely verbal, and hence trivial, but, on the contrary, marks the wide difference that exists between acting for oneself by an inherent faculty and the employment of another person to act for one and in one's stead."
"In this, as in all cases, loose terminology implies and conduces to loose reasoning. The maxim `qui facit per aliumfacit per se' requires and should be applied only when the agent the alius is not the principal acting for himself."
In the instant case the defendant corporation was operating its business through its president. He had been driving the truck for years as part of the business of the corporation. Upon his redirect examination he testified that he was one of the firm of Demarest Brothers, that it was a corporation, and he its president.
It is a matter of some significance, that the trial judge, in giving judgment, said: "There will be a judgment entered in favor of the defendant as to Mr. John Dotson, individually, and a judgment will be entered in favor of the plaintiff against the defendant, Demarest Brothers Company, a corporation, for $363.95."
It is a matter of proper conjecture that the trial judge, in view of the fact that Dotson was the president of the corporation, and that a trespass had been committed by Dotson while in the execution of an agency of the company, and he being the alter ego of the company, his act became, and was the act of the corporation. It also becomes evident that the liability of the corporation cannot be properly designated as a derivative liability, resulting from the tortious act of Dotson, as would have been the case if the relation of master and servant had existed between him and his company, for such liability rests wholly upon the basis that the act of Dotson was the tortious act of the company.
As has already been pointed out, the trial judge was warranted to find from the facts of the case that the trespass complained *Page 44 of, was the result of the truck being out of repair, and not due to any negligent operation of it by Dotson. It was not necessary for the plaintiff to establish that there was negligence in the operation of the truck by Dotson. Even if the trial judge gave credence to Dotson's statement that he became unconscious while operating the truck, that in itself does not furnish a legal excuse.
The action being one of trespass, it was wholly unimportant that the trespass was or was not the result of negligence, or that the perpetrator lacked the intent to commit the trespass, or was in a state of unconsciousness at the time of its commission.Delaware, Lackawanna and Western Railroad Co. v. Reich,63 N.J.L. 635, and Friedman v. Snare Triest Co., 71 Id.605, both cases being decided by our Court of Errors and Appeals, and are authority for the proposition that an infant, though of an age so as not to comprehend that in going upon the land of another, it is committing a wrong, nevertheless, it is in law a trespasser.
If a somnambulist, while in a somnambulistic state, should wander from home and go into his neighbor's garden and uproot rose bushes or commits other acts of destructiveness in law, he is guilty of a trespass, and answearble for damages, but, if, while in the act of despoliation he shoots and kills a person he is not guilty of murder, because his act lacked the essential element of intent, in order to constitute a crime. So, if a lunatic enters a neighbor's close without leave or license, he is a trespasser, and liable to the land owner in a civil action, for any damage committed by him.
I do not think it is necessary to pursue the discussion any further, since under the evidence, it was also open to the trial judge to find that the accident was not an inevitable or unavoidable one, and that the defendant company was answerable for the trespass and damages resulting therefrom, to the plaintiff. I therefore vote to affirm the judgment of the court below. *Page 45