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Cohen v. Press

Decided: May 21, 1954.

ETHEL SCHWARTZBERG COHEN, PLAINTIFF-APPELLANT,
v.
IDA PRESS, DEFENDANT-RESPONDENT



Clapp, Freund and Schettino. The opinion of the court was delivered by Freund, J.s.c. (temporarily assigned).

Freund

The plaintiff appeals from a judgment for the defendant entered upon a jury verdict of no cause of action. She was riding as a guest in the automobile of her sister, the defendant, and sustained injuries as the result of a collision between the defendant's car and a truck traveling in the opposite direction near the town of Clewiston, Florida. The truck owner and operator are not parties to this suit.

The complaint charged gross negligence or willful and wanton misconduct and was based upon the so-called "guest" statute of the State of Florida, which provides that no guest shall have a cause of action "unless such accident shall have been caused by the gross negligence or willful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or willful and wanton misconduct was the proximate cause of the injury * * * provided that the question * * * shall in all such cases

be solely for the jury. * * *" Laws of Florida , 1937, chapter 18033, page 671, F.S.A. ยง 320.59.

The accident having occurred in Florida and the cause of action being based upon a statute of that state, the lex loci governed and it was incumbent upon the plaintiff to establish facts required by the statute. Friedman v. Greenberg , 110 N.J.L. 462, 87 A.L.R. 849 (E. & A. 1933); Curry v. D.L. & W.R.R. Co. , 120 N.J.L. 512 (Sup. Ct. 1938); Shappell v. Apex Express, Inc. , 131 N.J.L. 583 (E. & A. 1944); Ivins v. Public Service Interstate Transp. Co. , 8 N.J. Super. 94 (App. Div. 1950).

The appellant argues four points: (1) error in refusal to charge a request; (2) and (3) error in the charge; and (4) that the verdict was contrary to the weight of the evidence.

The first point dealing with the refusal to charge and the second point respecting error in the charge are related, and can be treated together. The court fully charged respecting the duty of the defendant and the proof required to be established by the plaintiff, and no objection was made to the charge. In part, the court said:

"What she [the plaintiff] must establish is gross negligence on the part of the defendant and that that gross negligence was the proximate cause of the happening of the accident. I refer to gross negligence because this accident happened in the State of Florida and the parties are bound by the law of that state in their action or actions as related to each other, and that is the statute which was read to you. * * *"

The request which the court declined to charge read:

"I charge you that whether or not the truck driver was negligent and whether or not his negligence contributed to the accident is of no consequence and is not to be considered by you."

The essence of plaintiff's argument is that since the accident resulted from a collision between the defendant's automobile and a third party's truck, the refusal to charge and the charge above quoted were erroneous because "the ...


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