On certified appeal from the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Wachenfeld. For reversal -- Justices Jacobs and Brennan. The opinion of the court was delivered by Heher, J.
The infant plaintiffs seek redress for personal injuries suffered August 17, 1953, allegedly in consequence of the negligent operation by the defendant Ostrum of his own automobile in the service of his codefendant, Kittatinny Lodge, Inc., by whom he was employed as a counsellor at the Lodge's summer camp in Sussex County, New Jersey. The parents sue per quod for medical expenses incurred in the treatment of the infants' injuries and for the loss of their services.
The infant plaintiffs were also camp counsellors in the employ of the Lodge. Ostrum was the camp's "dramatics counsellor"; and on the day of the mishap he undertook
a trip by automobile from the camp to Port Jervis, New York, to obtain paint for a camp dramatics performance planned for the following week. They joined him for the trip, but not on an errand for the camp. On the way the automobile, driven by Ostrum, ran off the road and struck a tree, causing serious injury to the girls, occupants of the rear seat of the vehicle. Sitting with Ostrum on the front seat was one Weingrad, a member of the camp orchestra, on his way to purchase a new reed for his saxophone. A question mooted at the trial concerned the status of the infant passengers. Had Ostrum "invited" the girls to accompany him, or had they "solicited the ride"? There is no doubt the girls were recreation bent on their "day off." They were not then serving either the Lodge or Ostrum. It was contended at the trial that the Lodge had given instructions that all camp counsellors "having a car at camp" should when "going into town on their day off offer a ride to anyone who wanted a ride," to any of the camp personnel "who were unable to get out of camp any other way." The giving of such instruction was denied by the officers of the Lodge and other camp counsellors. Negligence in the operation of the automobile was denied.
Judge Proctor, in a charge that evoked no exception, submitted to the jury the litigated issues of negligence and agency. He ruled there was no evidence of contributory negligence or assumption of risk. He drew the distinction between "invitation" and "license," and directed that if the infant plaintiffs were found to have been "mere licensees," damages could not be had "because there is no evidence in this case of any wantonness or willfulness on the part of Mr. Ostrum." And he defined the duty of reasonable care owing to the infants if they were in the car by invitation. The charge continued: "Was Ostrum along with other counsellors who owned cars at the camp directed by the camp officials to carry counsellors who did not own cars when they desired to leave the camp on their days off?" If that issue were resolved in the affirmative, it was said, then under the doctrine of respondent superior (that is
a Latin term which means 'let the master respond') the camp would be responsible for the negligence, if any, of Ostrum, the owner-driver of the car"; if such were the case, "and in pursuance thereto Ostrum, in behalf of the camp, invited or permitted the plaintiffs to ride in the car, the camp would be responsible under this doctrine of respondeat superior, that is, let the master respond, for the negligence, if any, of Ostrum, and also Ostrum would be liable for his negligence if it was the proximate cause of the accident." And if the infants were in the vehicle at the invitation of Ostrum, not acting in that behalf for the camp, "if Ostrum asked the girls to ride, that is, invited them into his car, then he owed them the duty of using reasonable care in the operation of his car, that is, that he owed them the duty not to be negligent in the operation of his car"; but "if the plaintiffs asked Ostrum for the ride and he was not acting pursuant to any direction, then you must find in favor of the camp and also in favor of Ostrum; for the law is that where one asks another for a ride and the driver merely acquiesces or permits them to ride, then the driver is not responsible for any injuries they sustain under the evidence in this case."
At its conclusion plaintiffs' counsel informed the court that he was "satisfied with the charge," following an inquiry as to whether the substance of the requests had been charged.
The jury returned a verdict for both defendants against all the plaintiffs. Plaintiffs did not move for a new trial.
The Appellate Division affirmed the judgments. Error was there assigned upon (a) the denial of plaintiffs' motion to strike the affirmative defenses of contributory negligence and assumption of risk, and (b) certain rulings on evidence, not related to the rule of liability laid down in the charge. It was not contended that the verdict was against the weight of the evidence.
The case is here by our certification at the instance of plaintiffs.
It is urged in limine that an "automobile passenger or guest may recover against the driver if the negligent conduct
of the driver in the operation of the car causes injury to the passenger or ...