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Flagg v. Johansen

Decided: April 9, 1940.

FRANK H. FLAGG AND MARJORIE R. FLAGG, BY HER NEXT FRIEND, FRANK H. FLAGG, PLAINTIFFS, FRANK H. FLAGG, INDIVIDUALLY, PLAINTIFF-RESPONDENT,
v.
GOTFRED JOHANSEN, SR., AND GOTFRED JOHANSEN, JR., DEFENDANTS-APPELLANTS



For the plaintiff-respondent, William J. Straub and Stanley U. Phares.

For the defendants-appellants, William Wann and Wilbur A. Stevens.

Before Justices Trenchard, Case and Heher.

Case

The opinion of the court was delivered by

CASE, J. The appeal is from a judgment entered in the District Court of the Fourth Judicial District of the county of Union for plaintiff Frank H. Flagg, individually, against the defendants, Gotfred Johansen, Sr., and Gotfred Johansen, Jr., in the amount of $73. The grounds of appeal are that the trial court refused to direct a verdict for the defendants and that he erroneously entered a verdict in favor of the plaintiff Frank H. Flagg contrary to the force and effect of chapter 53, Pamph. L. 1939.

The action arises out of a collision between two automobiles, one owned by the plaintiff Frank H. Flagg and driven by his daughter, Marjorie R. Flagg, and the other owned by Gotfred Johansen, Sr., and driven by Gotfred Johansen, Jr. Frank H. Flagg brought the suit in his own behalf individually and as next friend of his daughter, Marjorie R. Flagg, in the latter's behalf. The judge, sitting without a jury, found -- and this finding is not disputed -- that the relations between Frank H. Flagg and Marjorie R. Flagg as to the automobile owned by the former and driven by the latter constituted a bailment wherein the father was the bailor and the daughter was the bailee. Upon that finding the court awarded judgment to Frank H. Flagg for his individual claim but found that Marjorie R. Flagg was guilty of contributory negligence and consequently could not recover. The court below construed the above mentioned statute as applicable only to conditional sales and therefore not as a bar to the bailor, Frank H. Flagg.

The construction of the statute is the only question on the appeal. It is the respondent's contention and it was the finding of the court below that the statute applies only to conditional sales; but we do not hold that view.

The title and body of the act are as follows:

"An act making the contributory negligence of the owner of the special property in goods or of his agents, servants or employes, a valid defense in suits for damages to said goods instituted by the owner of the general property in said goods as against negligent third parties.

"Be it Enacted by the Senate and General Assembly of the State of New Jersey:

"1. Whenever a conditional vendor, bailor, or owner of the general property in goods or chattels or the assignee or assignees of said conditional vendor, bailor or owner of the general property in goods or chattels, shall institute suit for damages to said goods or chattels, while the same are in the custody, control or possession of the conditional vendee, bailee, or owner of the special property in said goods or chattels or the agents, servants, or employes of said conditional vendee, bailee, or owner of the special property in said goods and chattels against a third party or parties, or against the agents, servants, or employes of said third party or parties, or both, based on the negligence of the said third party or parties, or the agents, servants, or employes of said third party or parties, the contributory negligence of the conditional vendee, bailee, or owner of the special property in said goods or chattels, or of the agents, servants, or employes of said conditional vendee, bailee or owner of the said special property in said goods or chattels, shall constitute a proper and valid defense to said action and be a complete ...


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