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Max v. Max

Decided: January 4, 1940.

JANE MAX, AN INFANT, AND DORIS MAX, AN INFANT, BY ELEANOR MAX, THEIR NEXT FRIEND, AND ELEANOR MAX, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
R. ROBERT MAX, DEFENDANT-APPELLANT



On appeal from the Hudson County Court of Common Pleas.

For the plaintiffs-respondents, Collins & Corbin (Edward A. Markley, of counsel).

For the defendant-appellant, Townsend & Doyle (Mark Townsend, Thomas F. Doyle and William A. O'Brien, of counsel).

Before Brogan, Chief Justice, and Justices Donges and Porter.

Brogan

[123 NJL Page 581] BROGAN, CHIEF JUSTICE. This appeal by the defendant raises several questions which challenge (a) the charge of the court as erroneous; (b) the court's ruling on evidence, and (c) the rejection of certain requests to charge proffered by the appellant. The plaintiffs had judgments upon the jury's verdict, i.e., Jane and Doris Max, infants, appearing by their next friend, Eleanor Max, for personal injuries, and Eleanor Max, personally, for her injuries and medical expenses. The injuries were received while the plaintiffs were riding in the defendant's automobile. The accident happened on a public road in New York State (the Bronx River Parkway).

The defendant's car, operated by one Preston Mayes, a chauffeur, left the highway and struck a telegraph pole.

In the brief the appellant says the "focal" points of the case were (1) "whose employe was Preston Mayes, the chauffeur? (not a party defendant) and (2) the proper construction of this Highway act -- the statute and decisions of the court of New York construing it being placed in evidence."

The main issue indeed was whether Mayes was at the time in the employ of the defendant or of Eleanor Max. The jury's finding on that question is, of course, conclusive, providing the proof thereof was unattended by error either in the admission or rejection of evidence or in the charge of the court to the jury.

Relative to the second "focal" point, it should be mentioned that the plaintiffs' theory of this case is two-fold -- (1) the alleged common law liability of the defendant, and (2) his alleged liability under section 59 of the statute called the New York Highway act; that section reads: "Every owner of a motor vehicle or motor cycle, operated upon a public highway, shall be liable and responsible for death or injury to persons or property resulting from negligence in the operation of such motor vehicle or motor cycle, in the business of such owner or otherwise by any person legally using or operating the same, with the permission, express or implied, of such owner."

The grounds of appeal, thirty-two in number, are reduced in the appellant's brief to seven points and these seven fall into the three categories already stated; (a) error in the charge as given; (b) error in the court's ruling on evidence, and (c) error in the court's refusal to charge the defendant's requests.

(A) Alleged errors in the charge are made the subject of argument in the appellant's brief under points 1, 3, 4 and 5.

Under this first point it is urged that it was error for the court to have charged the jury as follows:

"You have a right to determine the credibility of the witnesses from their demeanor on the stand (where they have been on the stand). You have a right to determine

whether they have convinced you that they have been telling the truth in this case. You have the testimony before you of a witness who has not been on the witness stand. That is the testimony of this colored man, Mayes, whose testimony was taken before a Master in Chancery and which testimony has been read to you. His evidence is competent because he is without the jurisdiction of the State of New Jersey. Apparently, at the time his testimony was taken, he was about to leave the jurisdiction of the State of New Jersey and his testimony was taken stenographically before a master so it could be used at this trial. It is now before you. You haven't had a chance to examine him on the witness stand and his testimony you must analyze from the record itself. If you want to draw inference from ...


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