Petrone v. Margolis, A--286

Decision Date17 June 1952
Docket NumberNo. A--286,A--286
Citation20 N.J.Super. 180,89 A.2d 476
CourtNew Jersey Superior Court — Appellate Division

William Furst, Newark, argued the cause for appellant (Manuel L. Barrett, Newark, on the brief).

Arthur J. Blake, Jersey City, argued the cause for respondent (Markley & Broadhurst, Jersey City, attorneys; Edward A. Markley, Jersey City, of counsel).

Before Judges McGEEHAN, JAYNE, and GOLDMANN.

The opinion of the court was delivered by


The mishap out of which the present litigation has arisen was the occurrence of a collision of an automobile owned by the defendant with a utility pole at or near No. 22 Broadway in the City of Newark at about 1:30 a.m. on May 25, 1950. The vehicle was admittedly owned and probably being operated at the time by the defendant. The plaintiff's intestate was an invited passenger in the car, who sustained a bodily injury in the collision from which he died on May 26, 1950. The plaintiff prosecuted this action against the defendant for the recovery of compensatory damages in her respective representative capacities as general administratrix of the decedent's estate and as administratrix Ad prosequendum. R.S. 2:47--1 et seq., N.J.S.A.

The members of the jury rendered a verdict specifically expressive of their conclusions, Viz., '(a) the deceased guilty of contributory negligence; (b) in favor of defendant, no cause for action; (c) verdict unanimous.' The application to the trial court for a new trial was denied, and the plaintiff now appeals from the final judgment and from the order dismissing the motion for a new trial.

It is immediately realized that the only contributory negligence of which the decedent could reasonably be said to have been guilty was his imprudent assumption, voluntarily, knowingly, of the risk of riding in a motor vehicle operated by a driver who was under the influence of intoxicating liquor.

As we view the case, the paramount inquiry is whether there was evidence from which it could have been logically and legitimately inferred that at the time the decedent entered the vehicle or within a reasonable period prior thereto, the defendant was in such a state of intoxication to induce a person of ordinary caution, circumspection and foresight to conclude that the defendant was unfit to operate the vehicle with reasonable care and safety to a passenger.

The inaugural comment may be that it is not in all instances to be inferred that the visitor upon departure is necessarily in a state of incapacitating intoxication merely because he has remained for a span of time in a saloon, a popular democratic meeting house for the dissemination of common information, or in a sumptuously ornamented cocktail lounge, wherein the subjects of income taxation, Mexican divorces, and philosophy are obliquely discussed. Some temperate patrons seem to enjoy primarily the atmosphere of contagious relaxation even though it is permeated with the thick clouds of cigarette smoke.

Nor is it always rational to measure the degree of the mental and physical impotency of the drinker merely by an observance of his loquacity, his vocal intonations, or the vigor of his argumentative discourse. Concededly, they are factors but they need corroborative associates. Not infrequently is it said of an intemperate consumer of alcoholic beverages that while imbibing he customarily assumes an attitude of concentrated piety, whereas in contrast some temperate tavern haunter immediately places his larynx in high gear and brandishes the muddler or, indeed, the half-filled glass about his head like a silver scimitar.

The foregoing comments, which are gleaned from the field of common knowledge, are not irrelevant to the consideration of the evidence in the present case.

The proof is ample to justify the conclusion that the defendant left his home at about 9:30 p.m. on the evening immediately preceding the mishap and visited a gas station for gasoline for his car, a drugstore for an article for his wife, a liquor store for a case of beer to take home, and a tavern next door to the drugstore for a glass of beer. He thereafter entered at 10:00 p.m. a nearby tavern known as 'Maurice's Palm Garden,' from which he and the decedent departed for their respective homes in the defendant's automobile at about 1:00 a.m.

There was no testimony whatever descriptive of the manner in which the collision occurred. The plaintiff succumbed, and the injury to the head of the defendant is said to have resulted in his complete loss of memory of all of his activities which followed his purchases at the drug and liquor stores. That the defendant and the decedent were together at Maurice's tavern for a sufficient period of time and in such circumstances as to afford the decedent the opportunity to observe the condition of the defendant is not to be doubted.

We search the transcription of the testimony to ascertain what manifestations of incapacitating intoxication the defendant exhibited.

Quotations from the transcript will disclose the literal aspects of the pertinent testimony.

The witness Wacker testified:

'Q. This fellow, Margolis, he was kind of noisy, was he not? A. Yes.

'Q. And boisterous? A. Yes.

'Q. And obviously had been drinking too much at that time, had he not?

A. Yes.

'Q. And, as a matter of fact, Petrone was drinking also, isn't that so? A. Yes.

'Q. And his voice was very heavy, not like his normal voice, isn't that so? A. Yes, he was drinking.

'Q. His voice was very heavy and not like his normal voice, isn't that so? A. Yes.

'Q. Wouldn't you say that both Mr. Margolis and Mr. Petrone were both feeling pretty good? A. Yes, they were drinking.

'Q. Just answer that question. Would you say that they were bordering on intoxication? A. They were both drinking.

'Q. Were both, in your opinion, from you observation, bordering on intoxication? A. Well, they were drinking.

'Q. Can't you answer that question? A. What do you mean by bordering?

'Q. When they walked out, did they stagger out? A. No.

'Q. Did Mr. Margolis stagger? A. No.

'Q. Are you sure of that? A. Yes.

'Q. They were together for over an hour, is that your opinion? A. A little over an hour, yes.

'Q. And during that time, were they arguing back and forth? A. Yes.

'Q. During that time, they were constantly drinking, is that correct? A. Well, I was playing pinochle and I wasn't--I couldn't say that they were constantly drinking.

'Q. Every time you looked, did they have a drink in front of them? A. I would say so.

'Q. Did you notice during the time that you recognized them for this period of at least an hour that their condition changed as they sat there or did they remain exactly the same as they were before? A. That, I couldn't say.

'Q. You wouldn't want to say one way or the other? A. How I remembered so clearly is the fact that this Margolis was very loud and boisterous, he was talking about the war.

'Q. Did you think Margolis was intoxicated? A. Well, he was drinking.

'Q. Did you think Margolis was intoxicated? A. No.

'Q. You didn't think he was intoxicated? A. No.

'Q. Did you think he was close to it? A. I would say close to it.'

The bartender at the Maurice tavern imparted the following information:

'Q. Were they seated at your bar? A. Mr. Margolis was seated at the bar before Mr. Petrone came in and Mr. Petrone was just standing, leaning up against the shuffleboard and they weren't together, they didn't seem to know each other.

'Q. Did you see them in conversation at any time that evening? A. Yes, I did.

'Q. About what time, do you remember? A. Oh, I would say around about 15 or 20 minutes after Mr. Petrone came in; I would say after 12 o'clock.

'Q. Did you see them leave? A. I did.

'Q. And did they leave together? A. They walked out of the place together.

'Q. They walked out together? A. They did.

'Q. You had an opportunity, did you not, to serve both these men? A. I did.

'Q. During the course of the evening? A. I did.

'Q. Do you recall what they were drinking? A. They were both drinking beer.

'Q. Do you remember their condition when they left? A. To my knowledge, they were both capable of taking care of themselves very well.

'Q. And they walked out? A. They walked out.

'Q. Well, would you say whether it was loud for Maurice's Palm Gardens or not, that Margolis was loud when he was talking with Petrone? A. He was a little extra loud than the rest of the people in the place.

'Q. And he had been sitting in your place for a couple of hours before Petrone came along? A. That is right.

'Q. And he and Petrone were talking for maybe 15 minutes or so and then, they both went out together? A. Fifteen minutes, I would say.'

The witness Koehler furnished this account of his observations:

'Q. Did you notice him talking to Margolis before that? A. Yes, they were sitting right alongside of each other, and they were talking, discussing something.

'Q. Was Margolis intoxicated? A. He was drinking.

'Q. Was he intoxicated? A. I don't know whether he was intoxicated.

'Q. Did you see him walk around? A. As far as I know, I didn't see him get up off the stool while I was there.'

The only other witness of those present in the tavern was McGlynn, from whose testimony the following quotations are taken 'Q. What was the condition of Margolis when he left, insofar as his soberness was concerned? A. To my inpression they seemed to be all right when they left the place.

'Q. What? A. They seemed to be all right in walking out.

'Q. Did you see him drinking while you were there? A. Yes, I did.

'Q. How did Al appear to be? A. He appeared to be all right.

'Q. How did the other fellow appear to you, Mr. McGlynn, truthfully?

A. He didn't appear to be too good.

'Q. What is your impression of Mr. Margolis' condition when you saw him on that night? Was he near to being drunk, or not? A. No, he wasn't.

'Q. Had he been drinking? A. He was.

'Q. Was he drinking more and was he in worse condition...

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