Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
This is a diversity of citizenship suit based on New Jersey law for personal injuries brought by Alphonse Napolitano against Eastern Motor Express, Inc. The accident in which the plaintiff was injured took place while a truck was being unloaded at the steamship pier in Hoboken, New Jersey. At the conclusion of the plaintiff's case the court dismissed on motion by the defendant. In this, the plaintiff's appeal, we therefore take his evidence as true.
There are two questions in this case. One is whether the evidence submitted by the plaintiff is sufficient to carry a case to the jury on the issue of defendant's responsibility for acts of its driver. The other is an alleged error by the trial judge in refusing evidence of custom. The points will be considered in order.
Plaintiff was employed by International Terminal Operating Co. ("ITO"), an independent stevedoring contractor. On the morning of the 16th of November, 1954, the driver of one of the defendant's trucks brought a load of metal articles incased in wooden cases to Pier 15, Hoboken, New Jersey. Plaintiff and some of his ITO fellow employees were told by their ITO superior "to go and assist the driver in unloading the truck."
The unloading began. Several of the cases had been removed by pulling them to the rear end of the trailer and removing them from the trailer with a "hi-lo," or fork lift tractor. In the middle of the truck at the forward end there was a box described by counsel for the plaintiff as shaped like a domino. It was 15 feet long, 8 to 12 inches wide, 4 feet high, and weighed 1500 to 1800 pounds. Two longshoremen assisting the truck driver each protested against the driver's method of moving this case to the unloading end of the trailer. Each of them wanted it put down flat, to move it with the 15 foot by 4 foot surface downward. The driver insisted that they could manage it standing upright the way it was, which left it riding on the surface 15 feet long and 8 inches wide. As the load was being dragged by a hi-lo to the rear end of the truck where another hi-lo would pick it up it swerved in some way severely hurting the plaintiff.
Has he stated a prima facie case of negligence in the above case summarized? If he has, is anything further necessary in a case which could go to the jury? We do not think it can be seriously questioned that if the driver himself were being sued, the plaintiff would have shown a case which would have justified a verdict against him if the jury chose to find it in the absence of defendant's evidence.This box containing metal objects was heavy and unwieldy, obviously a ticklish kind of thing to get safely off a truck. There was a direct conflict of ideas as to how it should be handled. The driver insisted on his way against the protest of two experienced longshoremen. We think that this presents sufficient possibility of difference of opinion as to a conclusion of negligence so that the trier of fact could well pass upon it.
The point was made in briefs and argument that the driver lacked the authority to direct the unloading and thus the doctrine of respondeat superior is inapplicable. It was admitted in pre-trial that the driver worked for defendant. It was not proved, nor was it the theory of the case, that plaintiff and his fellow ITO employees were lent servants of defendant. The record is far from clear on the exact relation between the pier operator, the independent contractor (ITO) and the defendant. Specifically it is not free from doubt who engaged ITO to unload the truck and who was responsible for supervising the process. But there is evidence in the record to support a finding that defendant's driver in fact undertook to direct the operation and that three ITO employees working with him acknowledged his leadership.*fn1 The driver had placed himself in such a relation to plaintiff that he would have been liable personally if the jury found negligence on his part which caused plaintiff's injury. Cf. Restatement, Torts § 323(1) (1934); Bascho v. Pennsylvania R. Co., App.Div.1949, 3 N.J.Super. 86, 65 A.2d 613; Nilsson v. Abruzzo, E. & A.1931, 107 N.J.L. 327, 153 A. 486.
We do not find any difficulty in ascribing the acts of the driver to the scope of his employment. Cf. Chapman v. Public Service Ry. Co., Sup.1909, 77 N.J.L. 258, 72 A. 36. The Restatement, Agency § 35 (1933), gives us the key here. The section reads as follows:
"Unless otherwise agreed, authority to conduct a transaction includes authority to do acts which are incidental to it, usually accompany it, or are reasonably necessary to accomplish it."
New Jersey law is in accord. Carlson v. Hannah, 1951, 6 N.J. 202, 78 A.2d 83; Sibley v. City Service Transit Co., 1949, 2 N.J. 458, 66 A.2d 864.
We think that a driver-chauffeur would have as incident to his general duties authority to unload or direct the unloading of his truck. If there is agreement or directions to the contrary that is a matter for explanation by the employer. Furthermore, a principal may be bound for his acts where a third party justifiably presumes that the agent had authority because of a "business usages and the nature of the particular business." Price v. Old Label Liquor Co., 1952, 23 N.J.Super. 165, 169, 92 A.2d 806, 808; Jacob Ruppert v. Jernstedt & Co., E. & A.1936, 116 N.J.L. 214, 217, 182 A. 900, 901; Restatement, Agency § 36 (1933). Here the evidence tends to show a custom for ITO employees to help truck drivers.We think it is not too much to expect a trucking company to be presumed to know the custom of the pier to which they send their truck with a load of merchandise. Our conclusion is that, subject to whatever explanation the defendant may bring forward, the trier of the fact should have been allowed to pass on the question of agency and it was incorrect to take it from the jury.
The other point in the case concerns the exclusion of evidence of custom. Two longshoremen were asked whether there was a custom in this and other ports in the area with regard to the manner in which crates of this sort were unloaded from trucks. The trial judge excluded the proffered evidence as irrelevant and immaterial and ruled that confusing, collateral and remote issues would be raised in establishing the similarity of circumstances. He told counsel that the refusal to receive the evidence was not based on the form of the question but the substance of what was asked.
While we do not say that this would be sufficient in the absence of anything else in the case to cause reversal, we do think that the learned judge was in error in refusing to receive this testimony. What we are considering here is not to be confused with expert testimony where the expert gives his opinion upon a given matter based upon his experience.*fn2 This question called for a fact answer, that is, the customary method of handling these materials if such custom in fact existed. Evidence of custom is habitually received in negligence cases. 2 Wigmore, Evidence § 461 (3d ed. 1940). Sometimes the defendant offers it to show that he conformed to the custom of the trade or business.*fn3 The rule in such a case is that he may show conformity to such usage although such conformity does not excuse him if the usage is not considered by the trier of the fact to constitute due care. Likewise, the plaintiff may show absence of conformity to custom on the part of the defendant upon the theory that falling below the customary standard tends to show negligence on the part of the ...