On appeal from the Court of Common Pleas of the county of Middlesex.
For the plaintiffs-appellants, John E. Toolan.
For the defendant-respondent, John S. Stockel.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
PORTER, J. Miss Reita Egan, one of the plaintiffs-appellants, was painfully and permanently injured in an automobile accident and brought this suit for damages through her mother as her next friend, the mother joining individually.
She received her injuries while an occupant in an automobile owned by Joseph Gromack and driven by Louis George Levay, Jr., respondent, when it came into collision with an automobile owned and driven by Harold K. Hopkins on State Highway Route 6, in the borough of Fort Lee about five o'clock in the morning of November 22d, 1937, while en route from New York City to Perth Amboy. The suit was against Gromack, Hopkins and Levay. It was tried in the Middlesex County Court of Common Pleas.
At the conclusion of the plaintiffs' case the trial court granted Hopkins' motion for a nonsuit based upon the evidence that he was driving at a reasonable speed on the right of the road and that the Levay car came directly across his path on its left side of the road, thus causing the collision. The trial court reserved decision on Bromack's motion for a nonsuit until the close of the defendants' case, when it was granted. It appeared that Gromack had lent his car to Levay who was not using it for any purpose of the owner. Levay's motion for a directed verdict in his favor was denied and the case submitted to the jury who returned a verdict of no cause of action in his favor.
The appeal is from that verdict grounded on the contention that the trial court fell into reversible error in his charge to the jury concerning what he said about Miss Egan's status in the car as to whether it was as an invitee or as a licensee as indicated by evidence of her conduct from the time she became an occupant in the car until the time of the accident; and that this comment of the court was on evidence of her conduct which was immaterial and irrelevant on the issue of invitee or licensee.
For present purposes the only facts which need be adverted to are those which have to do with the status of Miss Egan with the respondent on the night in question. Levay had borrowed Gromack's automobile to take Gromack's daughter for a pleasure trip. The couple went to a yacht club in Perth Amboy, where they resided, and late in the evening decided to go to the Astor bar in New York City. Levay invited two young men at the yacht club to accompany them. Miss Egan and her companion, Miss Throwbridge, were with the young men at the time. The invitation was declined. Miss Egan and Miss Throwbridge accompanied Levay and Miss Gromack to the Astor bar, but there is a sharp dispute between the parties as to whether Levay invited them, as they say, or whether they asked to be taken, as Levay and Miss Gromack say. The court allowed testimony, which was not objected to, concerning the conduct of the parties during the evening, for the purpose of establishing the status of the parties. It developed that they arrived at the Astor bar about twelve-forty-five
A.M. When they reached the Astor bar Miss Egan and Miss Throwbridge left the immediate presence of Levay and Miss Gromack, who remained together, and made the acquaintance of two young men with whom they danced and had refreshments. When they left the Astor bar Miss Egan told Levay that they were going to Childs restaurant and asked him and his friend to accompany them. They all went to Childs and again separated. After one dance the place closed and they all left. It was then about two-forty-five A.M. and Levay wished to go home and so informed Miss Egan and Miss Throwbridge. The escorts of the latter, however, suggested going to a "jitter bug" party in the Bronx and Levay consented to drive the party there. The young men directed him as to the route and when they arrived at the house of the party they found that the party was over. At the suggestion of the young men they all then went to a restaurant where they had ...