Whalen v. Young, A--120

• Decision Date: 03 May 1954
• Docket Number: No. A--120,A--120
• Citation: 104 A.2d 678,15 N.J. 321
• Parties: WHALEN et al. v. YOUNG et al.
• Court: New Jersey Supreme Court

Page 321

15 N.J. 321

104 A.2d 678

WHALEN et al. v. YOUNG et al.

No. A--120.

Supreme Court of New Jersey.

Argued March 29, 1954.

Decided May 3, 1954.

Charles A. Rooney, Jersey City, argued the cause for the defendant-appellants Carl Helm and L. & H. Transp., Inc.

H. Frank Pettit, Westified, argued the cause for the defendant-respondent James S. Young.

The opinion of the court was delivered by

HEHER, J.

The issue raised by this appeal is one of jurisdiction involving the defendants alone.

The action was brought on June 14, 1951 to recover damages for the pecuniary loss suffered by the next of kin of plaintiff's decedent, George Whalen, in consequence, it is said, of his death by the wrongful act, neglect or default of the defendant, James S. Young, as provided by R.S. 2:47--1 et seq., now N.J.S. 2A:31--1 et seq., N.J.S.A., and as well damages for pain and suffering endured by the deceased and the expenditures made for his medical care.

The fatality occurred August 4, 1949, as the result of a collision between a tractor-trailer operated by the defendant Young and a motorcycle driven by one Ross on which the deceased was riding. Death came within a few hours, it is averred, on the very day of the accident.

The complaint alleged that Young, a resident of Pennsylvania, was the owner of the tractor-trailer; and he was served with process through the Director of the Division of Motor Vehicles in the Department of Law and Publid Safety of New Jersey pursuant to R.S. 39:7--2, as amended by L.1949, c. 190, N.J.S.A. There was a later amendment of this section. L.1950, c. 251. Young answered denying negligence and pleading contributory negligence and assumption of risk; and he counterclaimed for personal injury and damage to his vehicle. There was an answer denying the counter-allegation of fault.

On January 30, 1952, by leave of court, Young interposed a third-party complaint charging that L. & H. Transportation, Inc., 'by Carl Helm, owner of the corporation,' was the 'employer' of Young, and in the operation in question, he, Young, was the 'agent, servant or employee' of Helm and the corporation, and as such 'had been directed to Pittsburgh * * * to pick up some freight on behalf' of the corporation, under an 'agreement' that the corporation would, Inter alia, provide 'liability insurance' coverage 'for the trip in accordance with the usual custom of the trade.' There was a demand for judgment against Helm and the corporation, both residents and domiciliaries of Pennsylvania, 'for any and all relief * * * adjudged against' Young in favor of the plaintiff administrator.

On August 14, 1952, on motion made by the corporation, the third-party complaint was dismissed. The order does not reveal the ground of dismissal; the reasons set down in the formal notice of the motion to dismiss were the failure to allege leave of court under Rule 3:14--1, now R.R. 4:14--1, and the asserted want of 'identity or relation' between the plaintiff's claim against the defendant and the defendant's claim pleaded in the third-party complaint, which was said to be 'premature.' A 'more definite statement' of the third-party claim was asked; also a 'severance' of the 'third-party complaint from the main action,' for fear of prejudice to the defendants, particularly the third-party defendant, and a 'stay of the trial of the third-party complaint.'

On January 26, 1953 the plaintiff, with leave of court, filed an amended complaint reiterating that Young was the 'owner' of the tractor-trailer in question, but also alleging, by several averments, that the vehicle was owned, operated and managed by Helm and the corporation, and its operation by Young at the time of the mishap was in pursuit of their business; and there was a prayer for judgment against all three defendants, jointly, severally, or in the alternative. Again, there was service upon the Director of the Division of Motor Vehicles of process directed to Helm and the corporation, and due notice was given to these defendants by registered mail.

The added defendants answered, February 16, 1953, denying the allegations of the complaint, and, by separate defenses, they disclaimed negligence, pleaded contributory negligence, assumption of risk, negligence by the operator of the motorcycle and a joint or common enterprise for gain between him and the deceased which rendered the negligence of one attributable to the other, and the bar of R.S. 2:47--3, now N.J.S. 2A:31--3, N.J.S.A., as an action not brought within two years after the death of the deceased. An amended answer, filed two days later, alleged that the cause of action for pain and suffering, pleaded by plaintiff as the deceased's general administrator, was not commenced within two years after the 'cause of action accrued against' Helm and the corporation, and 'is therefore barred by the statute of limitations.'

On March 4, 1953 Helm and the corporation gave notice of a motion for summary judgment on the amended complaint as pleading causes of action barred by the statute of limitations; and on December 15, 1953, the motion was granted as to the first count, but denied as to the second count, and judgment was entered accordingly.

On April 17, 1953 the defendant Young interposed a cross-claim against the defendants Helm and L. & H. Transportation, Inc., reiterating the allegations of the dismissed third-party complaint as to agency and the 'agreement' for indemnity insurance coverage in favor of Young in keeping with the 'usual custom of the trade,' and praying relief in the same terms.

Helm and the corporation immediately moved, in lieu of answer, for a dismissal of the cross-claim on these grounds: (a) estoppel against asserting the cross-claim by the prior dismissal of the third-party complaint, from which there was no appeal, and by conduct; (b) the issues raised by the cross-claim 'cannot be conveniently tried with the issues stated in the complaint,' and so the cross-action is not permissible under Rule 3:13--6, now R.S. 4:13--6; (c) the want of 'identity or relation' between the plaintiff's claim against Young and Young's cross-claim, and the 'cross-claim is premature'; (d) the want of In personam jurisdiction 'with respect to the claims presented in the cross-claim,' in that R.S. 39:7--2, N.J.S.A., does not cover the subject matter of the cross-claim. And there was a renewal of the prayers for a more specific statement of the claim, particularly as to the terms and conditions of the 'agreement' for liability insurance coverage, severance and stay, embodied in the earlier motion to dismiss the third-party complaint.

During the pendency of this motion, Young, this time without leave, served an amended cross-claim on Helm and the corporation, alleging additionally that under 'appropriate regulations of the Interstate Commerce Commission pursuant to Federal statutes relating thereto,' the corporate defendant 'was required to carry public liability insurance for the protection of the plaintiff herein in the event of the negligent operation of a motor vehicle operating in interstate commerce under the rights belonging to' the corporate defendant, and 'such insurance coverage as required by said I.C.C. regulations was effective during the trip to Pittsburgh,' and 'was for the benefit' of Young 'to the extent' that if Young 'was guilty of any negligence in the operation of the motor vehicle as alleged' by the plaintiff, 'said insurance policy would be for the protection of all parties concerned'; and, in addition to the relief sought by the earlier cross-claim, Young demanded that Helm and the corporation defend the action on his behalf and 'pay the costs' already incurred by him in defense of the action, including a 'reasonable attorney's fee,' and render such damages as Young 'has sustained' by reason of their 'refusal * * * to so defend.'

Helm and the corporation moved forthwith, in lieu of answer, for a dismissal of the amended cross-claim thus tendered on the same grounds advanced in the notice of motion addressed to the original cross-claim, and also for the reason that the amendment was filed without the permission of the court consider requisite under Rule 3:15--1, now R.R. 4:15--1.

The motion to dismiss the cross-claim was denied, and leave to amend was given according to the submission on file. As to the point of jurisdiction, the inclusion of other grounds for dismissal not related to jurisdiction was deemed 'equivalent to a general appearance under the cross-claim.' Whalen v. Young, 28 N.J.Super. 543, 555, 101 A.2d 64 (Law Div.1953).

The case is now here by our own certification of an appeal to the Appellate Division taken by Helm and the corporation.

The insistence is that the statutory provision for service of process upon a nonresident owner or operator of a motor vehicle involved in an 'accident or collision occurring' in New Jersey does not include 'a cross-claim arising out of an alleged insurance contract apparently made, if at all, outside of the State,' and the defense of want of In personam jurisdiction is not waived where, as here, such defense is made by motion under Rule 3:12--2, now R.R. 4:12--2, and is joined with 'other defenses.'

The manifest design of the cross-claim is not the enforcement against a nonresident 'chauffeur, operator or the owner' of a motor vehicle driven in New Jersey without state registration or license of a cause of action 'arising out of or by reason of' an 'accident or collision occurring within' New Jersey in which such motor vehicle, so operated, 'is involved,' but rather a contract allegedly made in Pennsylvania by Helm and the corporate defendant, residents and domiciliaries of Pennsylvania, to provide 'public liability insurance' for the protection of the defendant Young, also resident and domiciled in Pennsylvania, against the injurious consequences of the 'negligent operation' of a motor vehicle engaged 'in interstate commerce under hicle engaged 'in...