The opinion
Walker, Chancellor
(dissenting). In this case there was a direction of a verdict in favor of the defendant at the circuit. A motion to nonsuit at the close of the plaintiff’s ease was made, but was not argued or decided, and therefore is not before us.
In my judgment, the question presented at the close of the case was one of fact, and, therefore, under our decisions, it was for the jury and not for the court. That the question was a factual one I think sufficiently appears from the statements in the majority opinion, and it will, therefore, be unnecessary to review^ the facts.
The learned justice wdio wrote the opinion for this court says - that the vicarious responsibility of the master was legally predicated upon the presumed or proven existence of the relationship of master and servant, and if the relationship cannot be shown to have existed, responsibility does not exist. It is conceded that this is a correct statement of the *455 law, but that of itself does not decide the question as to whether the relationship was one of fact or of law. Again he says that there is no testimony worthy of the designation from which it can he reasonably inferred that what Brown did, on the day in question, was done in the scope of discharge of his master’s business. This is a clear intimation that there was testimony, even though slight, from which the agency might have been inferred. He then goes on and says that the uncontradicted fact permeates the case that when at Egg Harbor Brown refused to comply with his master’s orders. Here is a clear declaration, as 1 view it, that the question depended upon the fact, uncontradicted though it was. The learned justice further says that this conspicuous fact presents the basis for the legal principle applicable, that from the moment Brown turned his machine to Avalon instead of Philadelphia, he ipso facto occupied the status of a tort feasor, even as against the defendant. This may be conceded as a fact, but does not authorize the fact to be determined by the judge. He cites the following cases as supporting the proposition: Evers v. Krouse, 70 N. J. L. 653; Doran v. Thomsen, 76 Id. 754; Missell v. Hayes, 86 Id. 348; Jennings v. Okin, 88 Id. 659.
In my judgment, they do not apply. In Evers v. Krouse it was decided that the act done by a servant while engaged in the work of his master, but entirely disconnected therefrom and done solely for the accomplishment of a malicious or mischievous purpose of the servant, was not in any sense the act of the master. But it will he observed that this question was not decided by the court. The case was up on appeal from a verdict rendered by a jury, and the present Chief Justice, who wrote the opinion, observed that the only error assigned which required consideration, was directed at the charge of the judge to the jury in dealing with the question of the liability of the defendant.
In Doran v. Thomsen the ease was submitted to the jury upon the theory that the daughter of the defendant, in driving his automobile, was his servant, and the judge instructed *456 the jury that unless they found that the daughter was such servant the defendant would not be liable, and this court said that the mere fact of the relation of parent and child would not malee the child the servant of the defendant; and, further, that, assuming that the relation of master and servant existed generally between the father and daughter, yet it did not appear that on the occasion in question she was acting as such servant within the scope of her employment. This was a decision to the effect that, admitting all that the plaintiff had shown, no legal liability appeared to rest upon the defendant. In the case at bar the majority opinion does not uphold the direction of a verdict upon the theory that the plaintiff had not shown herself entitled to go to the jury, but that the testimony of the defendant disentitled the plaintiff, and that, because the defendant’s testimony was uncontradicted.
In Missel v. Hayes the case was submitted to the jury. After stating the facts Judge White, speaking for this court, said that it was urged that those facts were insufficient to form a basis for a finding that che son was acting as the servant of the father and within the scope of his employment as such, and that, therefore, the motions for a nonsuit or direction.of a verdict in the father’s favor should have been allowed under the case of Doran v. Thomsen. The learned judge distinguished the Doran case by saying that there the defendant’s daughter, whose negligent driving caused the accident, took her father’s automobile out for her own pleasure and that of friends who accompanied her, no other members of the family being in the car; that the only element in that case tending to show that the daughter was acting as the servant of the father was the hare fact that the father owned the automobile; that in fact the automobile was in the possession of a third party (who happened to be the owner’s daughter) who was using it. for her own and her friends’ pleasure, and not upon the owner’s business. The view which I have just expressed, namely, that on all of the testimony in the Doran case there was nothing that could be laid hold *457 of to legally support the theory that the daughter was, at the time of the accident, the agent of her father engaged about his business, accords with this. It is, in effect, though not in terms, a statement that if upon all of the evidence on which the plaintiff relies, whether given on behalf of the plaintiff or defendant, liability is not made to appear, and, of course, where the plaintiff does not make liability appear, upon any consideration of the testimony, contradicted or uncontradicted, a court and not a jury question arises. In the Missell case it was stated that the automobile at the time of the accident was occupied by the father’s immediate family and their guests, and that that fact constituted affirmative evidence that the automobile was being used in the father’s affairs or business, and it was decided that the question was one of fact, and that it was properly submitted to the jury.
In Jennings v. Okin the defendant’s son was directed by him to take his automobile to a certain locality on a certain errand. The question was whether the relationship of master and servant had not been severed by reason of the son taking two friends in the automobile to another locality. Only one of the alleged trial errors 'was deemed necessary for consideration by the court. It was an offer of testimony to show that the defendant’s son and agent made some statement as to the destination of the car when one of his invitees was about to enter ii. The exclusion of this testimony was held to be error upon the ground that it was part of the res gestae and a new trial was granted.
And so I say that none of these eases are authority for the proposition that a trial judge may assume to direct a verdict because uncontradicted testimony given by or on behalf of the defendant establishes his right to prevail; which it does, hut only if that testimony is believed, and the question of its belief or disbelief is strictly a jury function.
In Clark v. Public Service Electric Co., 86 N. J. L. 144. this court said (at p. 151) that a trial judge was only justified in directing a verdict upon a court question arising from the admitted or uncontrovertecl facts of a case, citing earlier decisions. I think that confusion has arisen in this case by a *458 failure to distinguish between uncontroverted testimony and unconiradicted testimony. It is true that to controvert means to deny, but it also means other things; it means, also, to debate; to dispute or oppose by reasoning, to contest, to oppose. Webs. New Int. Dict. 490. While at the conclusion of a case there may be uncontradicted testimony as to a fact or facts, nevertheless, there may be a controversy as to the truth of those facts, arising out of other facts, or probabilities, or what-not. And in Clark v. Public Service Electric Co. it was held that the jury did not have to believe the testimony of an uncontradicted witness.
In Schmidt v. Marconi Wireless Telegraph Co., 86 N. J. L. 183, this court said (at p. 185) that it could not agree that a certain' fact was so conclusively established as to make it one to be determined by the court rather than the jury. At the trial former Governor John W. Griggs testified for the defendant, and he was uncontradicted. The trial judge held that the proof was conclusively in favor of the defendant and directed a verdict in its favor. Chief Justice Gummere, speaking for this court, said in the opinion (at p. 186) that the testimony of a man whose character for truth and integrity is so universally known as that of Governor Griggs would always be accépted as a correct recital of the facts spoken to as he remembered them; but that it would hardly do to say that the character of a witness is the determining factor upon the question whether the facts testified to by him should be determined by the court or the jury; that it could not be that where the character of the witness for truth and veracity was known by the court to be unimpeachable the facts sought to be established by his testimony were to be determined by the court, but that where, in the judgment of the court, the witness is not entitled to full faith and credit, the facts sought to be proved by him must be submitted to the jury; that no such rule of evidence exists; that in every case where the issue depends upon the determination of facts the existence of which is not admitted, the jury and not the court must' determine them.
In Nell v. Godstrey, 90 N. J. L. 709, where the trial judge *459 directed a verdict for the defendant, this court said (at p. 712) that the ease should have been submitted to the jury, as there was evidence tending to show that the taxicab belonged to the defendant; that the chauffeur was his agent and that he was negligent; that it was claimed on behalf of the defendant that the chauffeur exceeded his authority as an employe; that if he did, if he violated his instructions, his authority and instructions were not known to the plaintiff; that he was apparently the agent of the defendant with authority to drive his taxicab for hire; and the judgment was reversed.
The latest pronouncement of this court on this question was made in the opinion tiled on May 3d last, in the case of Second National Bank v. Smith, 91 N. J. L. 531. In that ease this court held that the credibility of a witness is always for the jury, and that where the issue depends upon facts, the existence of which is not admitted, even though testified to by a credible witness who is unchallenged, the question is for the jury. In that case the plaintiff had a verdict and the defendant appealed. One of the questions (at p. 864) was whether a notice of protest of the promissory note sued on was received by the defendant. He testified that he never received it, but said that if he had he would have forwarded it to the Fidelity Trust Company. One of their officers testified that they received it. This court said that it was not shown that it was sent to the trust company by any other person, and that the jury had a right to believe the defendant received and sent it and that he was mistaken in his assertion that it had not come to him, as the credibility of the witness was for the jury, citing Clark v. Public Service Electric Co. and Schmidt v. Marconi Wireless Telegraph, Co., supra
. That the trial judge dealt with the case as a factual question is apparent from his remarks in granting the motion to direct a verdict. He said that he was convinced that the undisputed facts were susceptible of but one rational interpretation, and that was, that the defendant’s chauffeur at the time of the accident was not acting within the scope of his authority. He might have charged the jury to that effect with an assertion that no matter what his opinion was as to what *460 the facts showed, it was for the jury to place their interpretation upon them and find the facts accordingly. He then said that the chauffeur, at most, was only given the privilege of taking Arader and the lady around the island. I fail to see that under the law he could appropriate to himself the function of determining what, ait most, was the privilege of the agent; that, I repeat, was for the jury under proper instructions. He further said that it was not sufficient for the plaintiff to show merely that the defendant owned the automobile and that Brown was his chauffeur; that thejr were factors, but must be coupled with the fact, or proof of facts and circumstances tending to prove the fact, that the chauffeur was acting within the expressed or implied scope of his authority. There was much more in the case than the mere showing that the defendant owned the automobile and that Brown was his chauffeur. There was testimony that Brown was in the habit of taking out prospective purchasers of land for the defendant, and that Arader was an agent, who sometimes brought customers to the defendant. These, and others, were facts which may be said to have tended to prove the fact that the chauffeur was acting within the exjoressed or implied scope of his authority in going out with Arader and the woman. The trial judge proceeded to say that the chauffeur deliberately violated the express orders of his employer. The person who testified to this — that is, to the violation of orders, was the employer himself, who was the defendant, and it was his testimony that the trial judge laid hold of in deciding as to what were the undisputed facts. He also said that the chauffeur was using the machine in forbidden territory, and, according to the undisputed testimony, was racing on the public highway and was not engaged in his employer’s business. If the chauffeur were out on his master’s business, the fact that he was racing on the public highway would not excuse the master, as this court has held that where a servant is acting within the scope of his employment, the master is liable, even if the servant’s act violates the master’s orders. See Klitch Betts, 89 N. J. L. 348; Bittle v. Camden and Atlantic Railway Co., 55 Id. 615.
*461 In my judgment, there was some evidence, though slight, that the chauffeur was about his master’s business in taking the party out, and that a jury question was presented as to whether the agent at the time was running contrary to his master’s orders, without regard to whether the act was done negligently, or even maliciously, as was said in the Bittle ease. I do not say but that on a verdict for the plaintiff the trial judge would have been justified in setting it aside on rule to show cause. With that question we are not concerned. The only question before us is as to whether or not a factual question was presented when the case was rested, which required submission to the jury. I am clearly of opinion that it was, and shall vote to reverse for that reason.
For affirmance — The Chief Justice, Swayze, Parker, Bergen, Minturn, Black, Heppenheimer, Williams, Taylor, Gardner, JJ. 10.
For reversal — The Chancellor, Trenchard, Kalisch, White, JJ. 4.