Adler's Quality Bakery, Inc. v. Gaseteria, Inc.

• Decision Date: 22 March 1960
• Docket Number: No. A--77,A--77
• Parties: , 81 A.L.R.2d 1041 ADLER'S QUALITY BAKERY, INC, et al., Plaintiffs-Respondents, v. GASETERIA, INC., a corporation of Indiana, Defendant-Appellant and Third-Party Plaintiff, RKO Teleradio Pictures, Inc., a corporation of the State of New York, authorized to do business in New Jersey, Third-Party Defendant-Appellant and Fourth-Party Plaintiff-Respondent, Bonded Gas & Oil System, Inc., a corporation, Fourth-Party Defendant-Appellant, and Roscoe Turner Aeronautical Corporation, a corporation, Fourth-Party Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 55

32 N.J. 55

159 A.2d 97, 81 A.L.R.2d 1041

ADLER'S QUALITY BAKERY, INC, et al., Plaintiffs-Respondents, v. GASETERIA, INC., a corporation of Indiana,

Defendant-Appellant and Third-Party Plaintiff,

RKO Teleradio Pictures, Inc., a corporation of the State of

New York, authorized to do business in New Jersey,

Third-Party Defendant-Appellant and

Fourth-Party Plaintiff-Respondent,

Bonded Gas & Oil System, Inc., a corporation, Fourth-Party

Defendant-Appellant,

and

Roscoe Turner Aeronautical Corporation, a corporation,

Fourth-Party Defendant-Appellant.

No. A--77.

Supreme Court of New Jersey.

Argued Feb. 8, 1960.

Decided March 22, 1960.

William Hart, Jersey City, and Joseph V. Cullum, Union City, argued the cause for defendants-appellants, Gaseteria, Inc., and Bonded Gas & Oil System, Inc. (Thomas F. Doyle, Jersey City, and Joseph V. Cullum, Union City, of counsel; Townsend & Doyle, Jersey City, attorneys).

Samuel A. Gennett, Newark, argued the cause for plaintiffs-respondents, Adler's Quality Bakery, Inc., and others.

John Milton, Jr., Jersey City, argued the cause for fourth-party defendant-appellant, Roscoe Turner Aeronautical Corp. (Milton, McNulty & Augelli, Jersey City, attorneys; John Milton, Jr., John J. Hanlon, Jr., and Allan H. Klinger, Jersey City, of counsel and on the brief).

Willard G. Woelper, Newark, argued the cause for third-party defendant-respondent and fourth-party plaintiff-respondent, RKO Teleradio Pictures, Inc. (Toner, Crowley, Woelper & Vanderbilt, Newark, attorneys; Willard G. Woelper and Allan R. Roth, Newark, of counsel; Allan R. Roth on the brief).

The opinion of the court was delivered by

BURLING, J.

This case arises out of a collision of an airplane with a television tower located in North Bergen Township, Hudson County, New Jersey on November 8, 1956. Numerous claims were made by persons living or working in the immediate area of the tower involving real and personal property and incidental pecuniary losses allegedly caused by the precipitation to earth of the debris of the accident. The Superior Court, Law Division, by its order dated August 20, 1957, adopted the following procedure: a complaint was filed by one of the plaintiffs, Adler's Quality Bakery, Inc.; the other parties claiming damages, 25 in number, were to be considered parties plaintiff but were named only in a schedule attached to the complaint, which schedule lists the name and address of each party, the nature of the claim, and the amount of damages sought. The complaint alleges that Gaseteria, Inc., the defendant, was the owner of the airplane involved in the collision, and thus was allegedly absolutely liable under the provisions of N.J.S.A. 6:2--7 for the damages sustained by the plaintiffs. In its answer, Gaseteria admits ownership of the airplane in question, and by a supplement to its answer, permitted by an order of the Superior Court, Law Division, dated March 7, 1959, attacks the constitutionality of the statute on which the plaintiffs' theory of absolute liability is based.

On November 25, 1957 Gaseteria filed a third-party complaint against RKO Teleradio Pictures, Inc., hereinafter referred to as RKO, alleging that the latter was in control and possession, at the time of the collision, of the television tower into which the airplane crashed, and seeking contribution from RKO as a joint tortfeasor responsible for a Pro rate portion of all damages recovered by plaintiffs against Gaseteria. RKO thereupon filed a fourth-party complaint against Bonded Gas & Oil System, Inc., hereinafter referred to as Bonded, and Roscoe Turner Aeronautical Corporation, hereinafter referred to as Roscoe Turner, seeking contribution against each under the Joint Tortfeasors Contribution Law, N.J.S. 2A:53A--1 et seq., N.J.S.A. According to the pleadings of RKO it is alleged that Bonded and Roscoe Turner maintained, managed, operated and controlled the aircraft in question. Service of proces was not made personally upon the fourth-party defendants, but rather by serving the summons and complaint on the Secretary of State pursuant to N.J.S.A. 6:5--3. Bonded and Gaseteria filed a cross-claim for contribution against RKO. In its answer to the fourth-party complaint, Roscoe Turner offers three separate defenses, all attacking the effectiveness of service of process and denying the jurisdiction of the court.

On February 2, 1959 plaintiffs filed a motion for summary judgment against Gaseteria, together with affidavits in support thereof. By its order filed March 9, 1959, the Superior Court, Law Division, entered a summary judgment against Gaseteria on the issue of liability, holding Gaseteria absolutely liable under the terms of N.J.S.A. 6:2--7, and rejecting its constitutional attacks on that statute. From this order, Gaseteria filed an appeal with the Superior Court, Appellate Division.

On July 14, 1959 the Superior Court, Law Division, entered an order disposing of various motions made by the parties. Roscoe Turner moved the court to determine the effectiveness of the service of process made on it, and to dismiss the fourth-party complaint for failure to state a claim on which relief could be granted. Gaseteria moved for leave to amend its third-party complaint against RKO, primarily to add a count for indemnification. RKO moved the court to dismiss the third-party complaint and the cross-claim for failure to state a claim on which relief could be granted, and further moved to amend its fourth-party complaint to include a count for indemnification in the event that Gaseteria's motion so to amend the third-party complaint was granted. The trial court rejected Roscoe Turner's argument that it was not properly before the court, holding that N.J.S.A. 6:5--3 was applicable and that service of process made in accordance with the terms of that statute was sufficient to give the court In personam jurisdiction over the party so served. In addition, the trial court granted RKO's motion to dismiss the third-party complaint and cross-claim and granted Roscoe Turner's motion to dismiss the fourth-party complaint. The trial court also denied Gaseteria's motion to amend its third-party complaint to include a count for indemnification, and denied RKO's motion to the same effect.

The Superior Court, Appellate Division, by its order of September 3, 1959, granted leave to appeal to Gaseteria, Bonded, Roscoe Turner, and RKO from those portions of the trial court's order of July 14, 1959 which were adverse to the respective parties. These appeals were consolidated with the appeal made by Gaseteria from the trial court's order of March 7, 1959 granting plaintiffs' motion for summary judgment on the issue of liability. While these appeals were pending in the Superior Court, Appellate Division, and before argument there, we certified them on our own motion.

There are several distinct questions, dealing with the various orders rendered by the trial court, to be considered on this appeal. The first is the order granting summary judgment in favor of plaintiffs and against Gaseteria on the issue of liability. The second is the dismissal of the third-and fourth-party complaints and cross-claim by Gaseteria and Bonded for failure to state a claim on which relief could be granted. The third is the denial of Gaseteria's and RKO's motion to amend their respective complaints to include a count for indemnification. The fourth is the denial of Roscoe Turner's objections to the jurisdiction of the court based on the allegedly defective service of process.

I

The first question to be determined is whether the trial court properly granted plaintiffs' motion for summary judgment against Gaseteria on the issue of liability. R.R. 4:58--3 provides, Inter alia, 'A summary judgment or order, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.' Gaseteria attacks the judgment given on several grounds.

N.J.S.A. 6:2--7, the statute which was the basis of the trial court's order granting judgment, provides:

'The owner of every aircraft which is operated over the land or waters of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured. If the aircraft is leased at the time of the injury to person or property, both owner and lessee shall be liable, and they may be sued jointly, or either or both of them may be sued separately. An airman who is not the owner or lessee shall be liable only for the consequences of his own negligence. * * *'

Gaseteria argues that N.J.S.A. 6:2--7 is an unconstitutional exercise of the police power which deprives owners of airplanes of their property without due process of law. The argument is that 'the imposition of absolute liability upon the aircraft owner by R.S. 6:2--7 cannot be sustained unless the ownership and operation of aircraft be judicially determined to be an ultrahazardous activity as to persons for whose benefit absolute liability is imposed.' Gaseteria thereupon cites Johnson v. Central Aviation Corp., 103 Cal.App.2d 102, 229 P.2d 114 (D.Ct.App.1951); Boyd v. White, 128 Cal.App.2d 641, 276 P.2d 92 (D.Ct.App.1954); and Southern California Edison Co. v. Coleman. 150 Cal.App.2d Supp. 829, 310 P.2d 504 (Super.Ct.1957), to support its contention that aviation is no longer considered by the courts to be an ultrahazardous activity. But see United States v. Praylou, 208 F.2d 291, 293 (4 Cir. 1953), certiorari denied 347 U.S. 734, 74 S.Ct. 628, 98 L.Ed. 1085 (1954); Margosian v. United States Arilines, Inc., 127 F.Supp. 464, 467 (D.C.E.D.N.Y.1955); Restatement, Torts, § 520, comment (d) (1938).

The fault of this...