Silverstein v. Schneider
| Decision Date | 31 January 1933 |
| Docket Number | No. 57.,57. |
| Citation | 164 A. 480 |
| Parties | SILVERSTEIN v. SCHNEIDER et al. |
| Court | New Jersey Supreme Court |
Appeal from Circuit Court, Essex County.
Action by Abraham Silverstein, by his next friend, Anna Silverstein, against Hyman C. Schneider and another. Judgment for plaintiff, and named defendant appeals.
Affirmed.
Holmwood & Creighton, of Newark, for appellants.
Schneider & Schneider, of Newark, for respondent.
The case under consideration was tried in the Essex county circuit court, and the record discloses the following happenings:
On August 17, 1930, Abraham Silverstein, plaintiff, stood on the sidewalk at Hawthorne avenue near Hunterdon street in the city of Newark, N. J. Hyman C. Schneider, a defendant, was towing a Dodge automobile truck belonging to the other defendant, Mann's Carriage Factory, Inc., and turned from Hunterdon street into Hawthorne avenue. The tow rope broke, and the Dodge truck, which was being towed, ran up on the sidewalk, seriously injuring the plaintiff, as a result of which his left leg was amputated.
Now the plaintiff charges that the defendants were negligent and that their negligence was the proximate cause of his injury; that Schneider was driving his automobile in a reckless manner, and was towing the automobile truck carelessly, operating by sudden and violent starts and jerks, so that the truck, which was being towed, could not properly keep its course, and that this manner of operation caused the tow rope to break, and precipitated the autotruck onto the sidewalk where the plaintiff stood. There are other allegations of negligence against the defendant Schneider, in that the rope used for the towing was old and worn; that he did not inspect it; that it was not of sufficient length or strength to properly tow the automobile truck.
Prior to the happening, it appears that the truck of the Mann's Carriage Factory, for some reason or other, was unable to proceed to its garage on its own power, and the driver, one Middleton, sent for one Biow, who was the secretary of the Mann's Carriage Factory. Biow, on arriving at the scene, was unable to start up the truck, and called upon Schneider, a friend, who lived nearby, to tow the truck to the company's garage. A rope was gotten from the Dodge truck and fastened therefrom by Biow to the rear of the Schneider car, and the trip was started. Blow rode with Schneider in his car, and the driver of the Mann's Carriage Factory sat in the Dodge truck to manage its operation.
Plaintiff recovered a judgment against both defendants in the sum of $50,000, and the defendant Schneider appeals.
The first ground of appeal is that the court was without jurisdiction to proceed with the trial on the ground that the plaintiff was mentally incompetent and insane.
Plaintiff sustained the injury on August 17, 1930. He was in the hospital until December 28, 1930, and his physician saw him thereafter at intervals until April 21, 1931. Suit was started by the plaintiff in his own proper person on February 20, 1931. At or about the time of his discharge from the hospital the plaintiff began to grow morbid, brooding over his injuries, the loss of his leg, and subsequently he was removed to the city hospital because of his mental condition. Thereafter he was committed to the state insane asylum by the judge of the Essex county juvenile court.
On February 25, 1931, the judge of the circuit court of Essex county appointed Anna Silverstein, plaintiff's wife, to prosecute this action for the plaintiff as his next friend. Counsel for the appellant contends that it was error not to have vacated the order appointing a next friend, and stayed the trial until Silverstein was adjudged insane and a guardian appointed for him; that this action, under the circumstances, could not be prosecuted by a next friend.
We cannot agree with the contention that this ground for reversal constitutes reversible error. This action, apparently, was begun upon the plaintiff's own instructions. The suit had been started and issue joined before his disability manifested itself. He had selected his own agent in the person of the attorney to prosecute his case, or at least had ratified the selection before he had become mentally unbalanced. So that at the trial, the plaintiff, an alleged lunatic, had his case presented, not only by a next friend, but also by an attorney of his own selection. "Lunatics, if under age, must appear by guardian; if of full age, by attorney." 4 Coke Litt. 135B. Bacon's Abridgment page 47, under the heading, "Idiots and Lunatics," discussing this point, says: ." In a New York case, Faulkner v. McClure, 18 Johns. 134, this practice of a lunatic of full age appearing by attorney has been approved. In this state the practice has been approved in the case of Van Horn v. Hann, 39 N. J. Law, 207; Lutter v. Neubauer, 100. N. J. Law, 18, 125 A. 113, affirmed 101 N. J. Law, 222, 127 A. 924. See, also, McArdle Real Estate Co. v. McGowan, 109 N. J. Law, 595, 163 A. 24.
The order of the trial court appointing a next friend was unnecessary, but that is all it was. It was not harmful error so as to effect a reversal of the court below. The addition of Mrs. Silverstein to the proceedings as next friend did not add one iota of strength to the plaintiff's case. The defendant could not possibly have been harmed by the fact that she was so appointed. The plaintiff's case was presented by the attorney whom he chose for that task, and the fact that the trial court permitted that attorney to prosecute the plaintiff's case, the plaintiff being under the said mental disability, was a recognition of the attorney as a competent and proper person to conduct the litigation, and satisfied the requirements under our practice.
The second ground for reversal urged is that the trial court should have directed a verdict in favor of the defendant Schneider.
This ground is predicated on two propositions: First, Schneider was guilty of no negligence which was the proximate cause of the injuries sustained by the plaintiff; and, second, that intervening acts of negligence on the part of the codefendant, Mann's Carriage Factory, were the proximate cause of the plaintiff's injury. Obviously, this position is not well taken. From the proofs in the case the jury might have found that the rope used for the towing was old and...
To continue reading
Request your trial
-
Cahill v. Mundet Cork Corp.
...& Light Co., 12 N.J. 251, 256, 96 A.2d 387 (1953). Cf. Beam v. Kent, 3 N.J. 210, 69 A.2d 569 (1949). In Silverstein v. Schneider, 110 N.J.L. 239, 244, 164 A. 480, 482 (E. & A. 1933), proximate cause was said to be 'that affirmative act or omission which directly brought about the happening ......
-
White v. Ellison Realty Corp.
...happening complained of, and in the absence of which the happening complained of would not have occurred.' Silverstein v. Schneider, 110 N.J.L. 239, 164 A. 480, 482, (E. & A. 1933); Batts v. Joseph Newman, Inc., 3 N.J. 503, 71 A.2d 121 The intervening cause referred to by the court below co......
-
Vadurro v. Yellow Cab Co. of Camden
...cause is a jury question. S. Kosson & Sons v. Union Bldg., &c., Co., 108 N.J.L. 111, 151 A. 633 (E. & A.1930); Silverstein v. Schneider, 110 N.J.L. 239, 164 A. 480 (E. & A.1933). We find no error in the submission of the issue to the jury nor in the court's charge in so far as it related to......
-
Welser v. Welser, A--610
...286, 289, 41 A.2d 332 (Ch.1945). By this direction we intended to criticism of plaintiff's counsel. Cf. Silverstein v. Schneider, 110 N.J.L. 239, 242, 164 A. 480 (E. & A. 1933). At the hearings defendant testified that he is an automobile mechanic taking home between $55 and $67 'If I work ......