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Fisch v. Waters

Decided: February 26, 1948.

BETTY FISCH, PLAINTIFF-APPELLANT,
v.
RALPH WATERS AND BERNARD J. KAISER, DEFENDANTS-RESPONDENTS



On appeal from the District Court of Essex County.

For the plaintiff-appellant, Budd & Larner (Samuel A. Larner, of counsel).

For the defendants-respondents, Stickel & Stickel (Harold M. Kain, of counsel).

Before Justices Bodine, Heher and Wachenfeld.

Wachenfeld

The opinion of the court was delivered by

WACHENFELD, J. A judgment in the District Court was rendered against the appellant on her claim for personal injuries sustained in an automobile accident. She was riding in a vehicle owned by her and driven at the time by her husband, when it collided with a car operated by the defendant Waters.

By stipulation the appeal against Kaiser was abandoned.

The agreed facts show that the District Court Judge found, apparently with justification, that both drivers, Josef Fisch and Ralph Waters, were guilty of negligence. He also found that Josef and Betty Fisch were engaged in a joint venture

and therefore the negligence of Josef was imputable to the appellant, Betty Fisch, his wife.

The only question on appeal is whether the court below was in error in its finding that the Fisches were engaged in a joint enterprise so as to impute the negligence of the driver, the husband, to the wife, a passenger.

It is submitted by the appellant that the evidence was insufficient to spell out a joint enterprise because there was no proof from which an inference could be drawn that the wife had "any voice or control" in the operation of the car, and the following cases are relied upon: Harber v. Graham, 105 N.J.L. 213; Yanco v. Thon, 108 Id. 235; McGinley v. Winters, 110 Id. 540, and Ceccomancino v. D'Onofrio, 111 Id. 494.

These cases are not controlling in the case sub judice because there the passenger was not the owner of the car and there was no question of agency. The ...


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