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Maiswinkle v. Penn Jersey Auto Supply Co.

Decided: December 1, 1938.

GEORGE J. MAISWINKLE AND ANNA M. MAISWINKLE, PLAINTIFFS-APPELLEES,
v.
PENN JERSEY AUTO SUPPLY COMPANY, DEFENDANT-APPELLANT



On appeal from the Camden City District Court.

For the defendant-appellant, William R. Smith.

For the plaintiffs-appellees, Benjamin F. Friedman.

Before Justice Trenchard, Parker and Perskie.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This is the appeal of the defendant below from a judgment entered by the District Court judge, sitting without a jury, in favor of the plaintiff George J. Maiswinkle. There was judgment of no cause of action against the plaintiff Anna M. Maiswinkle and she did not appeal.

The action was instituted on behalf of the plaintiff George J. Maiswinkle for damage to his automobile, and on behalf of Anna M. Maiswinkle for personal injuries, as a result of a collision between the automobile of George J. Maiswinkle operated by his sister Anna M. Maiswinkle, and an automobile truck of the defendant Penn Jersey Auto Supply Company.

At the trial there was ample evidence justifying the finding that the collision was produced by negligence upon the part of the defendant company, concurring with negligence upon the part of the driver of the plaintiff's automobile.

The defendant-appellant says that "The court erred in the award of judgment to the plaintiff George J. Maiswinkle after finding that Anna M. Maiswinkle was guilty of contributory negligence," and in refusing to nonsuit the plaintiff, and in refusing to direct a verdict for the defendant, i.e., a motion for judgment on the ground that no issue of fact was presented.

Our examination of the record discloses no such error.

The sole argument of the appellant is that such contributory negligence is imputed to the other plaintiff, the owner of the car and appellee here. This contention is based solely upon the ground that the plaintiff George J. Maiswinkle, the owner, lived with his mother and sister, and upon the occasion in question, his sister, Anna, borrowed the car from him for the purpose of going to a nearby place to visit her girl friend, and that therefore her brother, the owner of the car, was liable for the acts of his sister the borrower.

We think not. The general rule is that the liability of one person for the negligence of another depends upon the contractual relation between the two of master and servant; and hence generally, in the absence of such relation, the owner of ...


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