Rose v. Squires

• Decision Date: 13 May 1925
• Docket Number: Nos. 45, 46.,s. 45, 46.
• Parties: ROSE v. SQUIRES et al. (two cases).
• Court: New Jersey Supreme Court

128 A. 880

ROSE

v. SQUIRES et al. (two cases).

Nos. 45, 46.

Supreme Court of New Jersey.

May 13, 1925.

(Syllabus by the Court.)

Appeal from Circuit Court. Monmouth County.

Action by Alfred Rose, administrator, ad pros, of Lena Rose, deceased, against Harry H. Squires and another, tried with action by Anna Rose against Harry H. Squires and another. From judgment for each plaintiff, defendants appeal. Reversed.

See, also, 126 A. 926.

Argued May term, 1924, before GUMMERE. C. J., and PARKER and KATZENBACH. JJ.

Mark Townsend, Jr., of Jersey City, for appellants.

Benjamin M. Weinberg, of Newark, for appellees.

PARKER, J. Lena Rose, the plaintiff's intestate in one of these cases, and Anna Rose, the plaintiff in the other, were passengers in an automobile driven by the defendant Campbell when it came into collision with another automobile driven by the other defendant Squires, which came out of a side street. As a result of the collision, Campbell's automobile ran into a tree. Anna Rose was severely, and Lena Rose fatally injured. The cases were tried together, and after the plaintiffs had rested, the trial court directed nonsuits as to defendant Squires, but submitted the cases to the jury as against defendant Campbell, and each plaintiff had a verdict and judgment, which are before us on these appeals.

Only two points are argued: The nonsuits as to Squires, and exceptions to the charge of the court.

As to the nonsuits ordered in favor of Squires, it is settled law that Campbell, the other defendant, is not legally aggrieved. The plaintiffs might complain, but where two defendants are charged as joint tort-feasors and one is discharged, even if erroneously, the other is not entitled to urge the error; the question being whether he himself is liable, and not whether the other defendant is. So that plaintiff could have sued either defendant separately, omitting the other. Newman v. Fowler. 37 N. J. Law, 89; Matthews v. D. L. & W. R. R. Co., 56 N. J. Law, 34, 27 A. 919, 22 L. R. A. 261; Whalen v. Penna R. R. Co., 73 N. J. Law, 192. 63 A. 993.

We take up, then, the alleged error in the charge.

It was a disputed question of fact at the trial whether the two Rose women were in Campbell's car by his invitation, or at their own solicitation. In the former alternative, he would of course owe them a duty of reasonable care; in the latter, he owed them no duty except to abstain from acts willfully injurious. Faggioni v. Weiss, 99 N. J. Law, ——, 122 A. 840. The trial judge charged properly on the measure of duty arising out of invitation, and no complaint is made of his instructions in that regard. But when he took up the other branch of the case, i e. the theory that the jury might find that the two passengers were mere licensees, he fell into error. In that aspect he told the jury to consider whether plaintiffs had shown that the injuries complained of were the natural and proximate cause (sic) of willful conduct of defendant Campbell; that plaintiffs' testimony tended to establish that Campbell was driving at excessive speed, perhaps as high as 45 miles an hour, regardless of the approach of the other car out of the side street, and in trying to avoid collision lost control of his car and ran into the tree; and said that if that were true, th...