Board of Ed., Woodbridge Tp. v. Kane Acoustical Co.

• Decision Date: 14 July 1958
• Docket Number: No. A--396,A--396
• Citation: 143 A.2d 853,51 N.J.Super. 319
• Parties: BOARD OF EDUCATION, TOWNSHIP OF WOODBRIDGE, Plaintiff-Appellant, v. KANE ACOUSTICAL COMPANY, Inc., a Corporation of New Jersey, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 319

51 N.J.Super. 319

143 A.2d 853

BOARD OF EDUCATION, TOWNSHIP OF WOODBRIDGE, Plaintiff-Appellant, v. KANE ACOUSTICAL COMPANY, Inc., a Corporation of New Jersey Defendant-Respondent.

No. A--396.

Superior Court of New Jersey.

Appellate Division.

Argued June 16, 1958.

Decided July 14, 1958.

Bernard Shurkin, Newark, for plaintiff-appellant.

Ishmael Sklarew, New Brunswick, for defendant-respondent.

Before Judges STANTON, HALL and GAULKIN.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Pursuant to leave granted under R.R. 2:2--3, plaintiff appeals from an order which purports to amend defendant's answer.

The complaint, in three paragraphs, alleges that the plaintiff, the Board of Education, Township of Woodbridge (hereafter called Woodbridge), 'was the owner of a partially completed school building which was in the course of construction,' and that defendant 'negligently caused a fire to occur on said premises,' as a result of which 'plaintiff was compelled to expend * * * money to repair and replace portions of the building,' for which plaintiff demands damages. The answer, filed March 5, 1957 and equally brief, denies everything but ownership, and alleges that 'the fire * * * was caused by the acts of others.'

The pretrial order, dated November 13, 1957, says:

'2. Plt contends that, Kane Acoustical Co., the def, under the terms of a contract, was installing acoustical tile in a new school * * * at which time there had been installed in the corridor of the school gas salamanders of propane gas, which had ignited, giving heat for the drying of the plaster walls, when Carl Rapaport, an employee of the def was pushing a buggy containing boxes of acoustical tile along the corridor when he negligently knocked over with the buggy a lighted gas salamander, which caused the hose to become disconnected, causing extensive fire damage to the building.

'3. Def contends that it had nothing to do with the cause of the fire that damaged the school building and further contends that the fire was caused by the servants, agents and/or employees of William J. Lyons Construction Co.

'5. Pltf claims $16,949.27 damages.'

The pretrial order then says:

'6. Def given leave to assert contributory negligence, estoppel through its agent servants and employees.

'7. Contributory negligence estoppel, liability and damages.'

At the very bottom of the pretrial order, after paragraph 16, which fixed November 27, 1957 as the date for trial, this appears:

'Def is given leave to argue on a motion day prior to trial matter of enlarging amendments to his answer.'

The most important purpose of a pretrial order is to have each side state fully what it intends to prove, and why. In the pretrial order in this case the defendant says nothing, either against the charge that Rapaport was its agent, and caused the fire in the manner stated, or about any of the contentions it now advances. No explanation is given of what defendant meant by 'Contributory negligence' or 'estoppel.' Defendant should not have been given 'leave to assert contributory negligence, estoppel through its agent servants and employees' in this fashion, without limitation or explanation. Indeed, except where a requested amendment is minor, formal, self-explanatory, or based upon sufficiently complete facts already set forth in the pretrial order or the pleadings, the proper practice is not to give leave to amend unless the proposed amendment is exhibited to the court, preferably by being attached to the notice of motion. Neither the trial court nor the opposing party should 'buy a pig in a poke in the shape of an undisclosed amendment.' Grobart v. Society for Establishing Useful Manufactures, 2 N.J. 136, 146, 65 A.2d 833, 837 (1949); Marsh and Vogel, 3 N.J. Practice, secs. 627--629 (1950). Seeing the proposed amendment enables the court to study it carefully before deciding whether permission to file it should be given. This avoids motions to attack it, for form or substance or because it is different than what the court permitted, after it is filed. It also enables the court then and there, without additional delay, to consider whether further pleading, discovery, amendment of the pretrial order, or other action is necessary. It would also avoid appeals such as this.

Why the defendant did nothing to amend its answer before the pretrial does not appear. On December 13, 1957, almost a year after the complaint was filed, and two weeks after the date fixed for trial in the pretrial order, defendant moved:

'* * * for an order striking the Board of Education of the Township of Woodbridge as a party plaintiff in the cause, or, in the alternative, compelling the Hartford Insurance Company, The Home Insurance Company and the U.S. Fire Insurance Co. and the William J. Lyons Construction Co. to be joined as party plaintiffs; and

'For an Order amending the answer filed in the cause to allege that the contributory negligence or any wrongdoing on the part of William J. Lyons Construction Co., the insured contractor and the real and actual subrogor of the said fire insurance companies, be a bar to any recovery by the said fire insurance companies in their own name or in the name of the Board of Education of the Township of Woodbridge and/or William J. Lyons Construction Co.; and

'For an Order accordingly amending the Pretrial Order entered in the cause, and the defendant shall rely on the memorandum of law annexed hereto in support of said Motion.'

If any affidavit was filed in support of the motion we do not have it, nor do we have the memorandum of law mentioned in the notice of motion. Hence we do not know what facts and documents were presented to the court below in support of this motion, and we can only surmise the basis for it from the language of the order appealed from. Indeed, nothing in the appendix even tells us what it is that the William J. Lyons Construction Co. (hereafter called Lyons) is alleged to have done, that constitutes contributory negligence.

The motion came on before a judge other than the pretrial judge. He signed an order March 18, 1958, in which he denied

'* * * the application for an Order striking the Board of Education, Township of Woodbridge, as a party plaintiff in the cause, or, in the alternative, compelling the Hartford Insurance Company, the Home Insurance Company and the U.S. Fire Insurance Co. and William J. Lyons Construction Co. to be joined as party plaintiffs * * *' But he did order:

'* * * that the defendant's Answer filed in the cause be and the same is hereby amended to allege that the contributory negligence or any wrongdoing on the part of William J. Lyons Construction Co., the insured contractor and real and actual subrogor of the Hartford Insurance Company, The Home Insurance Company and the U.S. Fire Insurance Co., be a bar to any recovery by the said fire insurance companies in their own name or in the name of the plaintiff Board of Education, Township of Woodbridge and/or William J. Lyons Construction Co.; and

'It is Further Ordered, that Paragraph 1 of the Pretrial Order entered in the cause be and the same is hereby amended to state that the action is based on a subrogation claim by the Hartford Insurance Company, The Home Insurance Company and the U.S. Fire Insurance Co., subrogee-insurers of the William J. Lyons Construction Co., contractor, and the Board of Education, Township of Woodbridge, owner, in the name of the plaintiff Board of Education of the Township of Woodbridge; and

'It is Further Ordered, that Paragraph 3 of the Pretrial Order be and the same is hereby amended to include the defense that the contributory negligence or any wrongdoing on the part of the said William J. Lyons Construction Co. be a bar to any recovery by the said fire insurance companies in their own name or in the name of the Board of Education, Township of Woodbridge and/or William J. Lyons Construction Co.'

Plaintiff now appeals from that order, and says it should be reversed because the contributory negligence of Lyons, even if it exists, does not bar the right of Woodbridge, which is free from negligence, to recover.

Whether appellant's argument is sound depends upon the contract between Lyons and Woodbridge, the provisions of the insurance policies, what the interests of Lyons and Woodbridge were in the school building at the time of the fire, and upon who was entitled to the proceeds of the insurance, and how much, as of the date of the fire. The pretrial order says Kane was working 'under the terms of a contract,' but doesn't say who the other contracting party was. That contract also might have a bearing on the result. Nothing in the record gives us any of this information. At the oral argument, counsel for the appellant did admit that the insurance company checks, totalling $16,949.27, though payable to Lyons and Woodbridge, had been endorsed over by Woodbridge to Lyons. Why, he said he did not know.

The necessity for the above-mentioned information is obvious. Appellant admits that this is a subrogation case, instituted by the insurance companies, to get back the $16,949.27, and that Woodbridge will receive no part of any recovery. The rights of the subrogated insurers can rise no higher than the rights of its insured, against the third party. Furthermore, a subrogee is 'subject to all legal and equitable defenses that the third party may have either against him or against the insured, and there can be recovery only if the cause is just and enforcement is consonant with right and justice.' Standard Accident Ins. Co. v. Pellecchia, 15 N.J. 162, 172, 173, 104 A.2d 288, 293 (1954).

The appellant has printed in its appendix the affidavit of its attorney filed in support of its application for leave to appeal. Passing the question whether...