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State v. Gelman

Decided: February 24, 1961.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEWIS GELMAN, DEFENDANT-APPELLANT



Matthews, J.c.c.

Matthews

[65 NJSuper Page 601] Defendant appeals his conviction under the provisions of N.J.S.A. 39:3-13, in the Municipal

Court of the Township of Maplewood. The facts leading to the conviction are not in dispute. Defendant, a licensed driver of this State, was controlling and in the company of another person of the age of 17 years who was operating the motor vehicle owned by defendant under a learner's permit issued by the Director of the Division of Motor Vehicles. The permittee, while so operating defendant's motor vehicle in the vicinity of Springfield Avenue, at its intersection with Burnett Avenue, in the Township of Maplewood, passed through a red traffic signal, in violation of N.J.S.A. 39:4-81. The permittee-driver pleaded guilty to the offense as charged, whereupon defendant, as the licensee-passenger, was found accountable for, and therefore guilty of, the violation of the permittee-driver, under the provisions of N.J.S.A. 39:3-13.

Defendant argues that the provisions of N.J.S.A. 39:3-13 do not impose an absolute liability upon a licensee-passenger who undertakes to supervise the operation of a motor vehicle by a permittee-driver, where such permittee is found to be guilty of a violation of the Motor Vehicle Law. Defendant contends that the statute requiring the licensee-passenger to exercise control also provides that the liability of the licensee-passenger for the transgressions of his permittee can only obtain where the licensee-passenger has failed to exercise proper control. I do not agree with this contention.

The pertinent provision of N.J.S.A. 39:3-13 reads as follows:

"* * * The permit shall be sufficient license for the person to operate a motor vehicle or motor cycle in this State during the period specified, while in the company of and under the control of a licensed motor vehicle driver of this State. Such person, as well as the licensed motor vehicle driver, shall be held accountable for all violations of this subtitle committed by such person while in the presence of the licensed driver. * * *"

It is to be noted at the outset that the provisions of the statute in question do not distinguish between violations

committed by a permittee while in the presence of a licensed driver, and those committed while in the presence of such driver and under his control. It is significant that the first sentence of the quotation refers to two requirements before the permittee may operate a motor vehicle, i.e. , the company and control of a licensed motor vehicle driver; the accountability feature of the statute, as found in the second sentence of the above quotation, refers only to violations committed by the permittee in the presence of the licensed driver.

No decision construing the penal effect of N.J.S.A. 39:3-13 has been called to the attention of the court. Numerous cases exist in this State dealing with the problem of whether or not the statute imputes the negligence of the permittee-driver to the licensee-passenger in civil cases. These decisions make it abundantly clear that negligence in such circumstances is not imputed, and that the licensee is only liable for negligent supervision of the permittee which is established as the proximate cause of the injury to the plaintiff. See Forker v. Pomponio , 60 N.J. Super. (App. Div. 1960); La Rosa v. Livezy , 109 N.J.L. 162 (E. & A. 1932). In Forker v. Pomponio , Judge Conford, in his opinion holding that the statute in question does not impute negligence between a permittee-driver and a licensee-passenger, stated (60 N.J. Super. , at p. 283):

" N.J.S.A. 39:3-13 provides that a person to whom a learner's permit has been issued may operate a motor vehicle in this State 'while in the company and under the supervision of a licensed motor vehicle driver', and, further, that such permit 'shall be sufficient license for the person to operate an automobile * * * while in the company of and under the control of a licensed motor vehicle driver of this State.' The section also provides that the licensed driver shall be liable for all violations of the Motor Vehicle Act committed by the permittee."

While this extract from the Forker opinion is clearly dictum , it may be taken to indicate the probable meaning of the statute as ...


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