Upon the opening statement of plaintiff's counsel, outlining in general terms the plaintiff's cause of action, the learned trial court, ex mere motu, directed a nonsuit, and from that determination this appeal was taken.
The plaintiff's decedent was killed by being run over by the defendant's automobile, driven by its servant, in the yard of the Balback Smelting and Refining Company, in Newark. *Page 622 The dceased was associate superintendent of the lead department of the Balback company, and as such was in charge of the yard of the company, which duty included the direction and supervision of vehicles entering the grounds, for the purpose of transacting business there, and removing merchandise therefrom. For the purpose of conducting and expediting the business, it had been the practice of the deceased to meet the defendant's automobile truck at or near the entrance, and take his stand upon the running board, and from there direct the movements of those in charge of the vehicle to the specific location, upon the grounds, where certain burlap bags and scrap burlap were awaiting removal by defendant. On the 25th of July, 1924, the deceased, pursuing his accustomed practice, stepped upon the running board near the entrance of the plant, and while the vehicle was being operated and carrying him to the intended location, the running board of the truck being in a broken, unsafe and disordered condition, collapsed, threw the deceased under the running car, and injured him so seriously that he died therefrom immediately. Not only was this statement of the plaintiff's cause of action before the learned trial court, but the complaint upon which it was founded, and which was a part of the record containing substantially the facts narrated, and presenting the plaintiff's cause of action, was also before the court. The complaint was not demurred to, in any form, but was met with an answer by the defendant which thus created a triable issue of fact.
The learned trial court, however, pursued the course indicated upon the ground that there was, from the opening of counsel, an absence of invitation, express or implied, by the agent of the defendant driving the truck, and that the deceased therefore occupied the status of a licensee, or a trespasser, to whom the defendant owed no duty greater than the abstention from willful negligence. We think the learned trial court erred in this conception of the situation. There are, of course, cases where, as in Karas v. Burns Bros., 94 N.J.L. 59, and Zampella v.Fitzhenry, 97 Id. 517, the line of demarcation is distinctly drawn between an unauthorized and *Page 623 clearly arbitrary or individual act of the driver of a vehicle, and therefore being ab extra his line of duty, and the scope of his employment was held to take from him the legal status of agency, so as to relieve the master from liability resulting from the well-settled doctrine involved in the application of the maxim respondeat superior. But such, obviously, was not the factual situation presented by the case at bar. It was open to the jury to ascertain from the facts whether a course of business procedure by which the deceased was allowed by defendant's driver to occupy a place upon the car, as a method of assisting and directing him to the place of loading the burlap, had persisted for such a period as to justify the deceased in adopting the procedure upon the occasion of his injury. If such a settled practice had in this wise obtained, a jury might reasonably infer that it was adopted by the servant, in the pursuance of the orderly and expeditious transaction of the master's business, and with their implied assent by one whose duty of supervision and direction of the business of the yard might reasonably be held to comprehend such course of action. Dierkes et ux. v. HauxhurstLand Co., 80 N.J.L. 369; 83 Id. 623; Fletcher v.Baltimore and Potomac Railroad, 168 U.S. 134.
Thus, it is declared, as a fundamental principle of the law of master and servant: "An agent may bind his principal by any act within the scope of his authority, and that authority may be implied from circumstantial evidence." 2 Street Leg. Liab. 448.
To the same effect is Blackstone "The master is answerable for the act of his servant, if done by his command, either expressly given or implied, nam qui facit per alium facit per se. In the same manner whatever a servant is permitted to do in the usual course of his business is equivalent to a general command." 1Com. 429.
And so it has been declared quite generally that: "Acts are authorized within the meaning of the law, where the master commands the particular act in question, or where the act is such as may be reasonably done, and is, in fact, done in order to carry out the master's general instructions *Page 624 or to accomplish a commanded act. A general command may be inferred from conduct or usage." Street ubi sup.; 18 R.C.L. 792, and cases cited.
Whether the act was or was not such as might reasonably be held to be within the employment's scope is ordinarily one of fact for the jury's determination, excepting where the departure from the master's business is of a marked and decided character when the question may be within the province of the court to determine. 18R.C.L. 796, and cases cited; Jennings v. Okin, 88 N.J.L. 659; 39 C.J. 1284, and cases cited.
The result is, the judgment under review must be reversed.
For affirmance — None.
For reversal — TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, GARDNER, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, JJ. 12.