Lutvin v. Dopkus

• Court: New Jersey Supreme Court
• Writing for the Court: MINTURN, J.
• Citation: Lutvin v. Dopkus, 94 N.J.L. 64, 108 A. 862 (N.J. 1920)
• Decision Date: 19 January 1920
• Parties: GUSTAV LUTVIN, PLAINTIFF, v. JOHN DOPKUS, DEFENDANT; ANTHONY MARTIN, PLAINTIFF, v. JOHN DOPKUS, DEFENDANT

108 A. 862

LUTVIN

v. DOPE US.

MARTIN

v. SAME.

Supreme Court of New Jersey.

Jan. 19, 1920.

Actions by Gustav Lutvin against John Dopkus, and by Anthony Martin against the same defendant, in which there were verdicts for defendant. On rule to show cause. Rule to show cause dismissed.

Argued June term, 1919, before the CHIEF JUSTICE, and M1NTURN and BLACK, JJ.

Slander & Stamler, of Elizabeth, for plaintiffs.

Kalisch & Kalisch, of Newark, for defendant.

MINTURN, J. The parties to these controversies were members of a social organization, which held a celebration at Staten Island, on July 7, 1918. The defendant who was the owner of an automobile, and who resided on Staten Island, was requested by the plaintiffs to convey them in his machine to the celebration, which he did, and while returning in the night, and as plaintiffs allege, while proceeding at a high rate of speed, the car driven by defendant overturned, and the plaintiffs were thereby injured, and these suits were instituted to recover damages for the resulting injuries. A jury in the district court rendered a verdict in favor of the defendant, in the face of a charge which imposed liability in the absence of due care. From that determination this rule was taken by the plaintiffs who seek to vacate the verdict. The legal question presented, as well on the motion to direct a verdict as upon a motion to nonsuit, raises the question of defendant's liability, under the conceded circumstances of the case; the insistence being that the plaintiffs were mere licensees to whom the defendant owed only the duty of refraining from the perpetration of an act willfully injurious.

The court charged the jury favorably to the plaintiffs' contention, viz., that the duty imposed by law upon the defendant was that resulting from the status of invitees to whom the duty of due care was owing. We think that conception of the situation was erroneous.

The conceded fact is that they solicited the defendant, as brother members of the organization, for the use of his automobile to take them to the picnic grounds and return.

The act of the defendant in acceding to their request possessed none of the elements of a contract, and involved no element of invitation which can bring it within the rule of law applicable to a passenger upon a railway train or a hired bus or to those cases of express or implied invitation upon which reliance is placed in the appellant's brief, and which involve, as a consequence of the legal...