Batts v. Joseph Newman, Inc., A--58

Decision Date23 January 1950
Docket NumberNo. A--58,A--58
Citation71 A.2d 121,3 N.J. 503
PartiesBATTS v. JOSEPH NEWMAN, Inc., et al.
CourtNew Jersey Supreme Court

John E. Hughes, Newark, argued the cause for appellant Joseph Newman, Inc. (Duggan, Shaw & Hughes, Newark, attorneys).

Thomas F. Doyle, Jersey City, argued the cause for appellant Tide Water Associated Oil Company. (William G. McLaughlin, on the brief; Townsend & Doyle, Jersey City, attorneys).

Jacob J. Levey, Jersey City, argued the cause for respondent.

The opinion of the court was delivered by

WACHENFELD, J.

On December 16, 1946 the respondent was standing on the sidewalk beside a parked coal truck on Avenue E in Bayonne. A truck rented to and operated by Joseph Newman, Inc., was being driven by Thomas Tennis, an employee of the Newman Company, along the avenue. As it passed the spot where the respondent stood, a cylindrical tank dropped from it and lay on the street. Several minutes later, a truck coming in the opposite direction swerved toward the curb and avoided the tank but a truck immediately following it struck the tank, propelling it underneath the parked coal truck and onto the sidewalk where it struck the respondent, causing compound, comminuted fractures of both legs. As a result of these injuries, the respondent was hospitalized for more than a year and suffered a considerable degree of permanent disability.

This action was commenced in the Hudson County Court of Common Pleas in January 1947 by the respondent against Joseph Newman, Inc., Tennis and Tidewater Associated Oil Company, the latter allegedly the owner and operator of the truck which struck the tank. The owner of the truck rented and operated by the Newman Company was subsequently joined as a party defendant but a non-suit was granted as to him during the trial and he is not a party to this appeal.

The cause was heard before a jury, which returned a verdict in the sum of $60,000 in favor of the respondent and against the appellants, Joseph Newman, Inc., and Tidewater Associated Oil Company. A verdict of no cause of action in favor of the Newman Company's driver, Tennis, was also returned. Rule for judgment was entered June 23, 1948. On rules to show cause, the respondent, on October 22, 1948, accepted a reduction of the verdict to the sum of $48,000. Notice of appeal to the Superior Court, Appellate Division, was filed on October 23, 1948 by Joseph Newman, Inc., and on November 29, 1948 by Tidewater Associated Oil Company. The Appellate Division affirmed the judgment.

The respondent moves to dismiss the appeals now taken to this court, contending that, since the original appeals were filed subsequent to September 15, 1948, the decision of the Appellate Division is final and no ground exists under the statutes or rules for further appeal. R.S. 2:16--81, N.J.S.A., provides that an appeal may be taken to the Appellate Division of the Superior Court subsequent to September 15, 1948 from an adjudication made prior to that date 'from * * * the Common Pleas Court, of a county.' R.S. 2:16--82, N.J.S.A., provides: 'In any such cause or proceeding, so transferred, the final determination thereof, on appeal, by the Appellate Division of the Superior Court, shall be appealable to the Supreme Court, if an appeal could have been taken to the Court of Errors and Appeals from the former Supreme Court had the Constitution not been adopted.'

In the case Sub judice, the rule for judgment was entered June 23, 1948. Under the then existing law, these appellants had one year within which to file their appeals. Since a right of appeal to the Court of Errors and Appeals existed under the former practice, the appeals are properly before this court in accordance with the quoted section of R.S. 2:16--82, N.J.S.A., supra, as modified by Rule 1:2--5, which requires such appeals to be filed within forty-five days, which was done in this case.

Different grounds for reversal are advanced by each of the two appellants and they will therefore be considered separately.

The Newman Company argues the trial court committed error by refusing to grant its motions for non-suit and for a directed verdict. It asserts no negligence was established which could be imputed to this appellant from Tennis or any other employee and, even if negligence were shown, it was not the proximate cause of respondent's injuries because the independent act of a third party intervened.

The testimony shows the tank in question had been affixed to the truck by someone other than Tennis and was part of the equipment regularly carried and used in the Newman Company's work. The truck had a panel body with an open back and upright stakes. No additional safeguard was provided to prevent unsecured objects from falling from it. While Tennis was sent out in the truck to procure gasoline, the tank apparently worked loose from its position and subsequently fell onto the street. Tennis, unaware of the loss, proceeded for some distance until stopped by an unkown motorist who had seen the tank fall. On this state of facts, the trial court refused the appellant's motions for a non-suit and for a directed verdict and submitted the case to the jury, which returned a verdict in favor of Tennis but against Joseph Newman, Inc.

There is proof to support the verdict so returned irrespective of any negligence of Tennis. The fact the tank fell into the street is eloquent evidence and, together with other proven facts, indicates it was not securely attached to the truck and that adequate precautions were not taken to prevent such an occurrence. There being evidence from which the negligence of the Newman Company might reasonably be inferred, a jury question was presented and the motions for non-suit and for a directed verdict on this ground were properly denied. Dayton v. Boettner, 82 N.J.L. 421, 81 A. 726 (E. & A. 1911).

The facts recited above also dispose of the appellant's contention that the verdict against it and the judgment entered thereon are without legal foundation because of the exoneration of its servant, Tennis. Where a master and servant are sued jointly and the action against the master is predicated solely on the tortious conduct of the servant, there can be no verdict against the master if a verdict is found in favor of the servant. Prendergast v. Jacobs, 110 N.J.L. 435, 166 A. 94 (E. & A. 1933). Where, however, as here, acts of negligence alleged against the Newman Company were not, of necessity, imputed to it from Tennis but related to acts of other employees of the company in failing to secure the tank properly and failing to provide adequate safeguards to prevent articles in the truck from falling onto the public highway, and where there was evidence introduced in support of these allegations, the determination was for the jury, based upon the proof submitted.

The other ground of appeal advanced by Joseph Newman, Inc., concerns the question of proximate cause. It is argued the trial court should have granted the motions for non-suit and a directed verdict because the evidence showed respondent's injuries were not attributable to any negligence of this appellant but to an independent, intervening act, the striking of the tank by a truck not owned or controlled by this company. If the act broke the causal connection between the appellant's negligent act in permitting the tank to fall in the street and the subsequent injuries suffered by the respondent, this contention would have merit. Here, however, the converse was true. The appellant's negligence was the foundation and cause of, and started the chain of events which led directly to the injuries sustained.

Proximate cause has been defined as 'the efficient cause; the one that necessarily sets the other causes in operation.' Batton v. Public Service Corp. of N.J., 75 N.J.L. 857, 69 A. 164, 165, 18 L.R.A.,N.S., 640, 127 Am.St.Rep. 855 (E. & A. 1908); Kelson v. Public Service R.R. Co., 94 N.J.L. 527, 110 A. 919 (E. & A. 1920). It is the 'act or omission which directly brought about the 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).

The Appellate Division, in its opinion, cited the case of Millman v. United States Mortgage & Title Guaranty Co., 121 N.J.L. 28, 1 A.2d 265, 269 (Sup.Ct. 1938), wherein is was held that a wrongdoer is liable for the results naturally and proximately ensuing from the wrongful act 'even though it...

To continue reading

Request your trial
32 cases
  • Hager v. Weber
    • United States
    • New Jersey Supreme Court
    • 21 Mayo 1951
    ...doctrine of Nelson v. Eastern Air Lines, Inc. 128 N.J.L. 46, 24 A.2d 371 (E. & A.1942), followed by this Court in Batts v. Joseph Newman, Inc., 3 N.J. 503, 71 A.2d 121 (1950); that, so assessed, the refusal of a new trial here is unexceptionable; and that, at all events, the Appellate Divis......
  • Ettin v. Ava Truck Leasing, Inc.
    • United States
    • New Jersey Supreme Court
    • 17 Marzo 1969
    ...the judgment in the earlier action was clearly no bar to the plaintiff's present action against Sweets. See Batts v. Joseph Newman, Inc., 3 N.J. 503, 509, 71 A.2d 121 (1950); Johnson v. Pullman Co., 200 F.2d 751, 753 (5th Cir. 1952); Restatement, Judgments § 99, comment (b) (1942); Cf. Gard......
  • Huddell v. Levin
    • United States
    • U.S. District Court — District of New Jersey
    • 28 Mayo 1975
    ...Andreassen v. Esposito, 90 N.J.Super. 170, 173, 216 A.2d 607, 609 (App.Div. 1966) (Emphasis added) (citing Batts v. Joseph Newman, Inc., 3 N.J. 503, 510, 71 A.2d 121 (1950)) and quoting from 38 Am.Jur. § 55, p. 703; see Restatement (Second) of Torts, §§ 433, 439. Foreseeability of actual in......
  • Cahill v. Mundet Cork Corp.
    • United States
    • New Jersey Superior Court — Appellate Division
    • 16 Noviembre 1961
    ...states the principles of law pertinent to the issues in the case, there is no error in this respect.' Batts v. Joseph Newman, Inc., 3 N.J. 503, 511, 71 A.2d 121, 125 (1950); Leone v. Rutt's Hut, Inc., 55 N.J.Super. 485, 151 A.2d 44 (App.Div.1959); State v. Juliano, 103 N.J.L. 663, 138 A. 57......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT