Bango v. Ward

• Citation: 97 A.2d 147,12 N.J. 415
• Decision Date: 18 May 1953
• Docket Number: No. A--128,A--128
• Parties: BANGO v. WARD et al.
• Court: United States State Supreme Court (New Jersey)

Page 415

12 N.J. 415

97 A.2d 147

BANGO v. WARD et al.

No. A--128.

Supreme Court of New Jersey.

Argued April 27 and May 4, 1953.

Decided May 18, 1953.

Robert C. Gruhin, Jersey City, for appellant.

John C. Stockel, Perth Amboy, for respondent Fariss.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

Plaintiff, a police officer, on duty in Pershing Avenue, Borough of Carteret, assigned to keep spectators back of the curb along that street during its use as a race course for a 'Soap Box Derby' sponsored by the Carteret Lions Club, an unincorporated service club, suffered personal injuries when struck by a 'soap box flivver' operated by a 13-year-old contestant, defendant Donald Ward.

Plaintiff first unsuccessfully sought damages for his injuries in an action against Carteret Lions Club and one William Sitar. His complaint alleged that they 'conducted' the event and were negligent in that they 'failed to provide the necessary safeguards and precautions for police officers, pedestrians and spectators in and about the vicinity.' His proofs upon the trial did not sustain his allegations but, on the contrary, showed that the responsibility for safety arrangements had been turned over to and assumed by the Borough of Carteret's police and fire departments. Accordingly, a judgment of involuntary dismissal was entered at the close of plaintiff's case on defendants' motion under Rule 3:41--2. Upon appeal the judgment was affirmed. Bango v. Carteret Lions Club, 12 N.J.Super. 52, 79 A.2d 57 (App.Div.1951), certification denied 7 N.J. 347, 81 A.2d 522 (1951). The Appellate Division determined not only that 'there was no evidence that the defendants controlled the situation', and that 'the arrangements for the safety of all concerned' were handled by the police and fire departments, but also that 'even assuming that the defendants did have authority over the conduct of the races' there was no evidence that defendants were negligent. 'They fully performed their duty when they persuaded the police and fire departments to take charge of the arrangements for the safety of all concerned (citing cases). No failure on the part of the police and fire departments to take proper precautions was shown.' 12 N.J.Super. 56, 58, 79 A.2d 58, 59.

The instant action was instituted after the entry of the judgment of involuntary dismissal in that suit and pending appeal therefrom. The complaint is in two counts. We are not concerned with the first count, which is against the infant contestant, Donald Ward, and is awaiting trial. The appeal is from the judgment of the Appellate Division, Bango v. Ward, 21 N.J.Super. 500, 91 A.2d 427 (1952), certified here on plaintiff's petition, 11 N.J. 329, 94 A.2d 548 (1953), affirming the entry of a summary judgment dismissing the second count, which alleges that plaintiff's injuries were caused by the negligence of respondent, Robert Fariss, upon the ground that the judgment of involuntary dismissal in favor of Carteret Lions Club in the original suit is Res judicata. Fariss, as required by Rule 3:8--3, pleaded the defense specially in his answer and then made the motion for summary judgment supported by his affidavit. Plaintiff filed no answering affidavits nor did he avail himself of the provisions of Rule 3:56--7 and seek an opportunity to justify his opposition to the motion by affidavits or depositions. The determination of the defense on motion for summary judgment under Rule 3:56--3, supported by the affidavit, was proper, Templeton v. Scudder, 16 N.J.Super. 576, 85 A.2d 292 (App.Div.1951), even though Fariss' connection in interest with Carteret Lions Club appears solely from his affidavit and is not alleged or alluded to in the complaint. The test under the rule is whether the pleadings and affidavits together 'show palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law,' in which case 'the judgment or order sought shall be rendered forthwith.'

Fariss' affidavit states that at the time of the soap box derby he was a director of the Carteret Lions Club and 'for and on behalf of the Lions Club' acted as general chairman of the derby; that he had been actively associated 'for about 14 years' with such events 'in various Cities around the Country'; that his committee was comprised of several chairmen, all also members of the Lions Club, 'of specific phases of the Derby such as procuring the ramp, prizes, inspection of cars, etc.'; that he was merely 'coordinator' of their activities to the extent of Lions Club participation and that 'everything I did was as a member of the Lions Club and not in any individual capacity dis-associated from the Club'; and, specifically as to safety arrangements, 'The Lions Club nor myself had nothing whatever to do with controlling the crowd and keeping people off the course, nor in connection with the installation and maintenance of ropes along the curbs of Pershing Avenue to control the crowd.' Both the trial court and the Appellate Division concluded that these uncontradicted facts concerning Fariss' status in relation to the Carteret Lions Club entitled him to assert the judgment in favor of the club in the original suit as a bar to the instant action against him.

When a party who is afforded a fair opportunity to litigate a claim or cause of action before a court which has jurisdiction over the parties and the subject matter suffers a final judgment adverse to him on the merits, parties in whose favor the judgment is entered, and their privies, may assert the judgment as a bar in a subsequent action on the same claim or cause of action. Templeton v. Scudder, supra; Restatement, Judgments (1942), sec. 1, p. 9. The public interest in putting an end to litigation, which underlies the principle of Res judicata, as well as the interest of parties requires that the loser in such case shall be denied a second chance to litigate the matters determined by the final judgment.

Appellant, conceding the principle, denies its applicability in the circumstances of the present case.

His first point is that the judgment in favor of Carteret Lions Club was not an adjudication on the merits but merely 'the equivalent of our former nonsuit,' which, even when a compulsory nonsuit, did not under the former practice preclude the plaintiff from bringing a new suit for the same cause of action. But, by Rule 3:41--2 'nonsuits are superseded' and, 'unless the court in its order for dismissal otherwise specifies,' a dismissal under Rule 3:41--2 operates as an 'adjudication upon the merits' where, as was the case in the action against Carteret Lions Club, the dismissal is on motion made 'after the plaintiff has completed the presentation of his evidence 'on the ground that upon the facts and the law the plaintiff has shown no right to relief.' The trial court did not 'otherwise' specify in the judgment in favor of the club and it was therefore both a final judgment and adjudication upon the merits.

The second point is that Fariss is not a person in privity with Carteret Lions Club. This is without substance. The club is not a legal entity separate and distinct from the persons who comprise its membership. It derives its existence 'from the consensual agreement of the component members, who act not by a distinct entity but by virtue of a mere agency.' Harker v. McKissock, 12 N.J. 310, 96 A.2d 660 (1953). At common law the action could not have been maintained against the club in its association name but would have been maintainable only against the members collectively except as under the doctrine of virtual representation some members less than all might have been named defendants. The authority for the action against the club by name is statutory. R.S. 2:78--1 et seq., now N.J.S. 2A:64--1 et seq., N.J.S.A., permits suits affecting the common property, rights and liabilities of such an association of seven or more members in the association name 'with the same force and effect as regards such common property, rights and liabilities as if the action or suit were prosecuted by or against all the members thereof.' Thus the original action against the club by name was in reality an action against...