Cowan v. Kami Now

• Decision Date: 19 May 1942
• Docket Number: No. 19.,19.
• Citation: 128 N.J.L. 398,26 A.2d 258
• Parties: COWAN v. KAMI NOW et al.
• Court: New Jersey Supreme Court

26 A.2d 258

128 N.J.L. 398

COWAN

v. KAMI NOW et al.

No. 19.

Court of Errors and Appeals of New Jersey.

May 19, 1942.

Appeal from Circuit Court, Hudson County.

Action by Dorothy Cowan, administratrix to prosecute and general administratrix of the estate of Sarah Zunz, deceased, against Ceceillie Kaminow and Henry Kaminow, to recover for the death of plaintiff's decedent resulting from injury sustained while riding in an automobile driven by first named defendant and owned by her husband, the other defendant. From judgments in favor of plaintiff, defendants appeal.

Judgment against Ceceillie Kaminow affirmed and judgment against Henry Kaminow reversed.

Cox & Walburg, of Newark, for appellants.

Stein & Mandel, of Union City, for appellee.

WELLS, Judge.

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 2, 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, N. J., 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 30, 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 2nd, 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 car? A. Yes.

"The Court: Is Henry your husband? A. Yes.

"Q. In other words, both you and your husband use the car even though it is in his name? A. Yes.

"Q. And you took your family out in the car from time to time, I mean your immediate family, like your children? A. Yes.

"The Court: On this day did you have your children with you? The Witness: Yes, my both children."

The only other testimony bearing on this point is found on pages 58 and 59 of the State of Case, beginning at line 30 of page 58, and is as follows:

"The Court: How did you come to get this car; did you speak to your husband about it?

"The Witness: It so happened my husband was going to the cemetery with his brother that day, and he said it was such a nice day that I could go out for a ride, which I did; and I went over to call for my mother—

"Mr. Walburg: I object to these conversations.

"The Witness: The Judge asked me, and I am answering the Judge's questions.

"Mr. Walburg: She ambles on after answering the question.

"The Court: It will stand up to the point of the conversation with her husband.

"Q. As a result of the conversation you had with your husband you went for this ride, is that right? A. I went to get my mother, that is right, and my sister, and then I went on for a ride.

"Q. And your husband knew you were taking the car? A. My husband gave me permission that morning. He usually drives the car on Sunday, but that particular day he was not home and he gave me permission to use the car."

There seems to be no question here with regard to the negligence of the driver as the proximate cause of the accident. Furthermore, there is no evidence that would charge the driver with anything more than failure to use reasonable care, whereby it follows that recovery by the plaintiff would depend upon the decedent having been an invitee. The defendants first contend, however, that there was no evidence in the case from which the jury might conclude that the decedent was an invitee of the driver.

There can be no doubt that the plaintiff had the burden of proving that the decedent was a passenger in the car by virtue of invitation from the driver, her daughter. However "'invitation is a term of considerable breadth'" and "'may include not only express invitation, but the invitation that may be implied from conduct, custom, or usage.' * * * The essence of implied invitation 'is that the defendant knew or ought to have known that something that he was doing or permitting to be done might give rise in an ordinarily discerning mind to a natural belief that he intended that to be done which his conduct had lead the plaintiff to believe that he intended'". Timannus v. DeWitt, 109 N.J.L. 168, 160 A. 490, 491. See, also, Myers v. Sauer, 117 N.J.L. 144, 187 A. 135.

It must be conceded that there is little evidence available in the present case on this question, but it does clearly appear that the driver did use her husband's car from time to time to take her children for a drive. There is also testimony that this is what she was doing on the day in question, and that after obtaining permission to use the car she "went to get" her mother. We believe that from this evidence the jury could fairly conclude that the idea of taking her mother for a ride originated with the driver, and that she initiated the action which led to her mother becoming a passenger. There would seem to be a logical inference of at least an implied invitation sufficient to establish the decedent as an invitee of the driver, and this question we think was, therefore, properly submitted to the jury.

The defendants have cited the cases of Kelliher, Jr., v. Grier, 126 N.J.L. 162, 18 A.2d 282, and Struble v. Bell, 126 N.J.L. 168, 17 A.2d 800, but neither appears to be authority for failure to prove invitation in the present case.

In the Kelliher case it was clearly shown that the plaintiff had been forbidden permission to ride on the car, and in the Struble case there was uncontradicted evidence that the driver had not given permission for the plaintiff to ride and, in fact, did not know he was on the truck.

It is next contended on behalf of the defendant owner, Henry Kaminow, that the decedent was not in the car by his invitation. The position which is taken is well stated in the case of Yanowitz v. Pinkham, 111 N.J.L. 448, 168 A. 770, 771, as follows:

"Of course, on the principle of respondeat superior, the owner of an automobile is held liable to one riding therein as his guest, whether such owner is driving the car in person, or by his duly authorized agent, with or without the presence of the owner in the car.

"But one who is riding as a guest in an automobile, though the car is being driven by the owner's agent duly authorized thereto, may be the guest of the agent, and not of the owner.

"If the driver of an automobile, though acting duly for his absent master in the operation of the car, was not acting for him or in the execution or furtherance of his master's business in accepting and transporting the guest, the master and owner cannot be held liable by the guest for want of reasonable care of the driver."

The law is well settled in this state that when an automobile is being driven by one other than the owner, there is a presumption that the automobile is in the possession of the owner and that the driver is acting in the owner's business. Mahan v. Walker, 97 N.J.L. 304, 117 A. 609. This rule has been specifically applied in a case where a wife was driving an automobile owned by her husband, Venghis v. Nathanson, 101 N.J.L. 110, 127 A. 175. However, this rule cannot, and should not, be extended to create a presumption that a passenger in a car, driven by one other than the owner, is an invitee of the owner. The status of a...