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Devine v. Heinrich

Decided: October 17, 1932.

LUCILLE DEVINE, AN INFANT, BY HER NEXT FRIEND, THOMAS D. DEVINE, AND THOMAS D. DEVINE, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
JOSEPH HEINRICH, DEFENDANT-APPELLANT; THOMAS J. REILLY, PLAINTIFF-RESPONDENT, V. JOSEPH HEINRICH, DEFENDANT-APPELLANT



On appeal from the Essex County Circuit Court.

For the appellant, Frank G. Turner.

For the respondents, Joseph C. Paul.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. These are appeals of the defendant below from judgments entered upon verdicts for the plaintiffs, the cases having been tried and argued together.

On May 11th, 1930, the plaintiff Lucille Devine, an infant, and the plaintiff Thomas J. Reilly were riding in the automobile owned and driven by the defendant, Joseph Heinrich. They were coming from a dance. Heinrich drove his car west on Eighteenth avenue, approaching the intersection of Boyd street, in Newark, past a standing trolley car, when his car collided with another car coming north on Boyd street, and the two plaintiffs were injured.

The defendant first contends that the trial court erroneously refused to grant a nonsuit in favor of defendant and against Lucille Devine on the grounds (1) that the plaintiff was not an invitee in the automobile of the defendant, and (2) that the defendant was not negligent.

We think that the question whether or not the plaintiff Lucille Devine was an invitee, as well as the plaintiff Reilly, was properly submitted to the jury.

The evidence was to the effect that she had been to a dance escorted by her friend, Thomas Reilly, the other plaintiff. He testified: "Q. Tell us how you came to be in the car on that day in question? A. Well, about two or three weeks before the accident happened, Joe asked me if I wanted to buy two tickets to his dance. He said, 'are you coming to my dance?' I said, 'I guess so.' He said, 'all right, I'll pick you up.' So on that night he came to my house about eight o'clock and picked me up and went on to Lucille's house and picked her up and from there went up to Joe's girl friend's house and picked her up and went down to the dance. Q. Where was the dance? A. Down at Simonson's on Broad street. Q. After the dance what did you do? A. After the dance we got in the car and were going to go home. Q. Who was in the car? A. Joe Heinrich, Joe's girl friend, Lucille Devine and myself. * * * Q. Tell us how Miss Devine came to be in the car? A. Well, about two weeks before the accident Joe said, 'are you going to our dance?' I said, 'yes,'

so he said, 'who are you bringing?' I said, 'Lou, I guess.' Q. You mean by 'Lou' Lucille? A. Yes. He said, 'all right. I'll pick you up.'"

The person referred to as "Joe" is the defendant in this case. It will be noted that defendant asked plaintiff Reilly to buy two tickets and ascertained that he would bring Lucille, and then said, "all right, I'll pick you up." Pick who up? It is obvious from the fact that two tickets were sold and that they were going to a dance, that it was open to the jury to find that the defendant had in mind Reilly's girl companion, as well as Reilly himself, when he extended the invitation.

It further appeared that when the party, consisting of defendant and his girl companion and Reilly and Lucille, left the dance together, they entered the defendant's car again to return home, ...


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