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Cowan v. Kaminow

Decided: May 19, 1942.

DOROTHY COWAN, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF SARAH ZUNZ, DECEASED, PLAINTIFF-APPELLEE,
v.
CECEILLIE KAMINOW AND HENRY KAMINOW, DEFENDANTS-APPELLANTS



On appeal from the Hudson County Circuit Court.

For the appellants, Cox & Walburg.

For the appellee, Stein & Mandel.

Wells

The opinion of the court was delivered by

WELLS, J. This is an appeal from judgments entered in the Hudson County Circuit Court, on the verdict of a jury, given in favor of the plaintiff, Dorothy Cowan, administratrix, and against the defendants, Ceceillie Kaminow and Henry Kaminow.

On October 2d, 1938, the defendant Ceceillie Kaminow, hereinafter referred to as the driver, was operating an automobile owned by her husband, the defendant Henry Kaminow, hereinafter referred to as the owner. Mrs. Kaminow was accompanied by her two children, a sister, and her mother, Sarah Zunz, the plaintiff's decedent, whom she was taking for a drive in her husband's automobile. When they were in or near Little Falls, New Jersey, the driver looked down at her infant child, who sat on the front seat beside her, and who had moaned in her sleep, and the next thing she knew the car had gone across the road and struck a telephone pole. All of the occupants of the car were injured, and there is uncontradicted testimony that the injuries sustained by Sarah Zunz were directly responsible for her death, about two months later.

On November 30th, 1939, the plaintiff, as administratrix ad prosequendum and general administratrix of Sarah Zunz, commenced this action against the driver and the owner.

At the trial a motion for a directed verdict in favor of defendants was denied, and a verdict was returned in favor of the plaintiff, resulting in judgments against each defendant for a total amount of $3,688.70 and costs. It is from these judgments that this appeal is taken.

Fourteen grounds of appeal are set up by the defendants, based on the refusal of the trial court to direct a verdict and certain alleged errors in the charge to the jury. However, these resolve themselves into three general contentions for reversal, namely (1) that there was no evidence or proof that the plaintiff's decedent was an invitee of the driver; (2) that there was no evidence or proof that the plaintiff's decedent was an invitee of the owner; and (3) that certain bills in the amount of $1,828 should not have been allowed since they represented a voluntary payment by the children of the decedent.

All of the testimony with regard to the manner in which Sarah Zunz became a passenger in the car was adduced from the driver, the defendant Ceceillie Kaminow. Because of the nature of this appeal it is believed that proper consideration of the case requires that this testimony be set out at length. It begins at the top of page 55, state of case and is as follows:

"Direct examination by Mr. Wittreich, attorney of plaintiff:

Q. Mrs. Kaminow, were you the driver of this car on October the 2d, 1938? A. Yes.

Q. And who was the owner of that car? A. Henry Kaminow.

Q. Does Henry Kaminow drive? A. Yes.

Q. And did you drive the car? A. I drove the car that day. Other times, too.

Q. Did both you and your husband use the ...


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