On appeal from the Supreme Court (Essex Circuit).
For the appellant, Harry Levin.
For the defendants, Collins & Corbin (Edwin A. Markley and Howard F. McIntyre, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. The plaintiff below brought this action against both defendants to recover damages for personal injuries sustained by plaintiff in an automobile collision between a car owned by the defendant Pinkham and a car owned by the defendant Frucht, but driven by plaintiff's brother, in which plaintiff was riding.
The trial resulted in a verdict and judgment in favor of both defendants, and the plaintiff appeals only from the judgment in favor of defendant Frucht, who will hereafter be referred to as the defendant.
The sole question involved in this appeal is whether the trial judge erred in submitting to the jury the question whether the plaintiff was defendant's invitee or a licensee.
The contention of the plaintiff was and is that, as a matter of law, she was defendant's invitee, and therefore the defendant owner owed her the duty of reasonable care; the defendant's contention being that as to him she was a mere licensee to whom he did not owe such duty.
We think that, under the evidence, the plaintiff cannot complain that the court submitted to the jury the question whether the plaintiff was defendant's invitee or a licensee.
At the trial it appeared that a daughter of the defendant
was at the seashore (Bradley Beach), and she wanted to come home; that he gave Max Yanowitz (plaintiff's brother) his (defendant's) car, and told Yanowitz to take defendant's three other children along and bring home the defendant's daughter. It was on the way to Bradley Beach that the collision occurred in which the plaintiff was injured, the defendant, of course, not being present. The plaintiff testified that her brother asked her to go along on the ride, and that she entered the defendant's car at her own home, and not the defendant's home. Plaintiff's brother testified that he asked the defendant if he could take his sister on the ride, and that the defendant said it was all right, and that it was his recollection that defendant permitted him to take his sister on the ride. The defendant testified: "He [Max Yanowitz] asked me if he could take his sister, and I said, 'that is up to you. If you want to take her, take her.'"
Of course, on the principle of respondeat superior, the owner of an automobile is held liable to one riding therein as his guest, whether such owner is driving the car in person, or by his duly authorized agent, with or without the presence of the owner in the car.
But one who is riding as a guest in an automobile, though the car is being driven by the owner's agent duly authorized thereto, may be the ...