Citation Numbers: 11 N.J. Misc. 241
Filed Date: 3/25/1933
Status: Precedential
Modified Date: 7/25/2022
The action was brought by Natale Oliveri to recover for damage done to his truck as the result of a collision between that truck, a car belonging to the defendant Dirk Kruyff and another car owned by the VanderMays (defendants-appellants), trading as Little Falls Laundry Company, and alleged to have been driven by one Bussell Banta. At the conclusion of the plaintiff’s ease Banta sought and was granted a nonsuit upon the ground that there was no proof showing him to be the driver of the YanderMay truck. At the same time the YanderMays moved for and were denied a judgment of nonsuit.
The only specification of error set up by the appellants is as follows:
In support of that contention the appellants cite numerous cases which, however, are all 'quite beside the point. These cases center upon the proposition that where the basis of an action is the alleged negligence of the driver, the court may not find the driver not to have been negligent and at the same time find the owner negligent, in other words may not acquit the servant and bring a verdict against the master. That rule has no application to the case at bar. The court did not here find that appellants' driver was not negligent. The finding was that Banta was not shown to have been the driver of appellants’ truck; and the proofs as disclosed by the printed state of case sustain that finding.
The appeal having been made to hang upon the disposition of the case against Banta, it follows that the judgment below will be affirmed, with costs.