Peskowitz v. Lawrence F. Kramer, Inc.

• Decision Date: 04 February 1929
• Docket Number: No. 33.,33.
• Citation: 144 A. 604
• Parties: PESKOWITZ et al. v. LAWRENCE F. KRAMER, Inc., et al.
• Court: New Jersey Supreme Court

144 A. 604

PESKOWITZ et al.

v. LAWRENCE F. KRAMER, Inc., et al.

No. 33.

Court of Errors and Appeals of New Jersey.

Feb. 4, 1929.

Appeal from Circuit Court, Passaic County.

Action by Diana Peskowitz and others against Lawrence F. Kramer, Inc., and another. From a judgment for named plaintiff, defendants appeal. Affirmed.

Kellogg & Chance, of Jersey City, for appellants.

Irving L. Werksman, of Passaic (James M. Dunn, of Paterson, of counsel), for respondent Diana Peskowitz.

KALISCH, J. The plaintiffs below brought their action against the defendants below to recover damages for injuries sustained by them, while riding in an automobile, propelled by Bessie Peskowitz, as the result of a collision with an automobile truck, owned by the defendant-corporation, and operated by its driver, Jacobus Kuiper.

The occupants of the automobile at the time of the collision were Ruben Peskowitz, the owner of the car, his wife, Diana, Jennie Shapiro, Simon Shapiro, her husband, Bessie Peskowitz, the daughter of Ruben, and the driver of the car, and Dorothy Peskowitz, by next friend. They all joined in the action against the defendants.

To the plaintiffs' complaint, the defendant corporation filed an answer and a counterclaim. In its answer the defendant denies negligence on its part, and sets up contributory negligence of the driver of the Peskowitz car.

The plaintiffs filed a replication to the answer and counterclaim.

The gravamen of the plaintiffs' complaint is that the collision between the automobiles was the sole result of the careless, negligent, and reckless manner in which the automobile was being operated by the defendant corporation's driver, upon the public highway.

The plaintiff Ruben Peskowitz claimed compensation for the damage done to his automobile, and also for loss of consortium of his wife, Diana, and to recover moneys expended by him for medical aid, hospital expenses and medicines, all of which he claims were incurred to cure his wife of her injuries.

Diana Peskowitz, in her complaint, sues for the injuries caused by the collision, and for the pain and suffering endured by her as a result thereof.

The jury rendered a verdict in favor of Diana Peskowitz for $5,000, and a verdict of no cause of action on behalf of the remaining plaintiffs, and no cause of action on the counterclaim filed on behalf of the defendant corporation, and judgment was entered in favor of Diana Peskowitz against the defendants. From this judgment an appeal is taken to this court.

Although there are seven grounds of appeal assigned by the appellant why the judgment brought here for review should be reversed, they all go to embrace a single inquiry as to the correctness of the proposition charged by the trial judge, namely, that due contributory negligence of the husband does not, per se, preclude his wife from a right to recover compensation for injuries sustained by her, from the defendant company, as a result of such concurring negligence.

The appellant relies on the case of Goodenough v. Pennsylvania Railroad Co., 55 N. J. Law, 596, 27 A. 931, to sustain his contention that a husband's contributory negligence is a bar to a wife's right of recovery for injuries received by...