Carlo v. Okonite-Callender Cable Co.

• Decision Date: 05 December 1949
• Docket Number: No. A--17,OKONITE-CALLENDER,No. M--197,A--17,M--197
• Citation: 3 N.J. 253,69 A.2d 734
• Parties: CARLO v.CABLE CO. Motion
• Court: New Jersey Supreme Court

Page 253

3 N.J. 253

69 A.2d 734

CARLO v. OKONITE-CALLENDER CABLE CO.

No. A--17.

Motion No. M--197.

Supreme Court of New Jersey.

Argued Oct. 10, 1949.

Decided Dec. 5, 1949.

Joseph Coult, Newark, argued the cause for the appellant (Wilbur A. Stevens, Newark, attorney).

Harry Tartalsky, Jersey City, argued the cause for the respondent (O'Brien & Tartalsky, Jersey City, attorneys).

The opinion of the court was delivered by

BURLING, J.

This is an appeal from the judgment of the Superior Court, Appellate Division, dated March 23, 1949, based upon a unanimous opinion reversing a judgment of the Passaic County Court entered October 14, 1948 upon an involuntary dismissal of an action which had been commenced in the Passaic County Court of Common Pleas prior to September 15, 1948. A motion by the plaintiff to dismiss this appeal and an alternative petition for certification by the defendant were held for consideration with the appeal.

The action of the plaintiff is bottomed on the alleged actionable negligence of the defendant. The gravamen of the complaint is that the defendant failed to exercise the care commensurate with risk of danger involved in the bottling, inspecting, packing and marking of a package containing certain bottles of bromine so as to indicate the dangerous contents thereof. It appears from the rather nebulous opening of the plaintiff at the trial of the cause that the issue was reduced and limited by the plaintiff to an alleged breach of duty on the part of the defendant in failing to properly mark and label the package of bromine as a dangerous material in accordance with a statute of New Jersey and certain regulations of the Interstate Commerce Commission prescribing the manner of packing and labeling.

The defendant denied negligence and pleaded contributory negligence and assumption of risk as affirmative defenses.

The defendant, a corporation of the State of New Jersey, is engaged in the manufacture of cable and insulated tape. The plaintiff, a resident of Passaic, New Jersey, is an employe of the Moon Carrier Corporation, a common carrier. On July 21, 1945, the defendant shipped from its plant in Paterson, New Jersey, for delivery to the Dow Chemical Company in Jersey City, New Jersey, via its agent, the Moon Carrier Corporation, eleven cases containing quart bottles of bromine. The bromine had originally been sold to the defendant by the Dow Chemical Company and, being unused, was being returned to the latter company. One of the eleven cases contained five bottles of bromine which had been packaged by the defendant. The shipment was received by the Moon Carrier Corporation at the defendant's plant and taken to Clifton, New Jersey to the premises of the Moon Carrier Corporation where it was removed from the first truck, placed upon a loading platform and then transferred to another truck, which was preparing to depart for Jersey City, New Jersey, and Bayonne, New Jersey, to be delivered to its destination, the Dow Chemical Company, in Jersey City, New Jersey. While the shipment was at rest at the Clifton, New Jersey, terminal of the Moon Carrier Corporation, the plaintiff discovered smoke emanating from the package containing the five bottles of bromine. He removed the package from the truck, pried off the lid and threw water on the smoking contents. An explosion ensued causing injury to the plaintiff.

We shall first dispose of the procedural question relative to the right of appeal from the judgment of the Appellate Division of the Superior Court in the instant case.

The present action was commenced in the Passaic County Court of Common Pleas prior to September 15, 1948, and was pending therein on that date. Judgment was entered in the action by the Passaic County Court on October 14, 1948.

The Courts of common Pleas were treated in the following manner in the Constitution of 1947:

First, in the vesting of the judicial power under R.S. Article VI, Section I, paragraph 1 N.J.S.A., it was provided that it should be in a Supreme Court, a Superior Court, County Courts and inferior courts of limited jurisdiction.

Second, provision for the jurisdiction of the County Courts was made under Art. VI, Sec. IV, Par. 1, as follows '1. There shall be a County Court in each county, which shall have all the jurisdiction heretofore exercised by the Court of Common Pleas, Orphans' Court, Court of Oyer and Terminer, Court of Quarter Sessions, Court of Special Sessions and such other jurisdiction consistent with this Constitution as may be conferred by law.'

Since the Court of Common Pleas was not expressly abolished by Art. XI, Sec. IV, par. 3, but its jurisdiction preserved and made to form a part of the jurisdiction of the Court to be known as the County Court, it was not necessary to spread its jurisdiction as it was with the Court of Errors and Appeals, the former Supreme Court, the Court of Chancery, the Prerogative Court and the Circuit Court, specifically referred to in paragraph 3 as the abolished category. Paragraph 4 of the same Article and section provided that: 'when the Judicial Article of this Constitution takes effect, the jurisdiction, powers and functions of the Court of Common Pleas, Orphans Court, Court of Oyer and Terminer, Court of Quarter Sessions and Court of Special Sessions of each county, the judicial officers, clerks and employees thereof, and the causes pending therein and their files, shall be transferred to the County Court of the county.'

By Art. XI, Sec. I, Par. 2, provision was made that 'The Legislature shall enact all laws necessary to make this Constitution fully effective' and it is to be noted that by Art. VI, Sec. IV, par. 4, 'The jurisdiction, powers and functions of the County Courts and of the Judges of the County Courts may be altered by law as the public good may require.' The Legislature enacted an implementing act (P.L.1948, Chapter 365, R.S. 2:1B--1 et seq., N.J.S.A.) to avoid confusion in making the transition, and incidentally prescribed the jurisdiction of the Court, reiterating, for the present, like jurisdiction as was provided for in Art. VI, Sec. IV, par. 1.

Provision for appeals from the County Court was made as follows:

Art. VI, Sec. V, Par. 2 provides that appeals from the County Courts may be taken to the Appellate Division of the Superior Court.

P.L.1948, Chapter 365, Sec. 22, p. 1475: 'Any person aggrieved by an order or judgment of the County Court may appeal therefrom to the Appellate Division of the Superior Court within the time and in the manner provided by the rules made and promulgated by the Supreme Court.'

The following is significant:

1. P.L.1948, Chapter 367 (in paragraph 2, R.S. 2:16--71, N.J.S.A.) refers to the transfer of causes 'pending in the courts on September fifteenth, one thousand nine hundred and forty-eight, according to the provisions of Paragraph 8 of Section IV of Article XI of the Constitution'; and permits (in paragraph 13, R.S. 2:16--82, N.J.S.A.) appeals to the Supreme Court in certain cases therein specified. It gives no comfort to the appellant as the Common Pleas and County Courts are not mentioned in the Constitutional provision referred to therein.

2. This Act is limited (Sec. 12, R.S. 2:16--81, N.J.S.A.) to cases which were adjudicated prior to September 15, 1948.

The decision of this Court in Giordano v. City Commission of City of Newark, 2 N.J. 585, 67 A.2d 454 (1949) is not apposite, as it dealt specifically with pending prerogative writs.

The right of appeal in a cause pending in the Common Pleas Court on September 15, 1948, is, therefore, clearly and only defined in Art. VI, Sec. V, Par. 2 of the 1947 Constitution and in P.L.1948, Chapter 365, paragraph 22 (R.S. 2:1B--22, N.J.S.A.) and is limited to an appeal to the Appellate Division of the Superior Court, unless the cause falls within one of the categories set forth in Art. VI, Sec. V, Par. 1 of the 1947 Constitution and Supreme Court Rule 1:2--1.

The appeal, as such, is accordingly dismissed. Art. VI, Sec. V, Par. 1(d) and Supreme Court Rules 1:2--1 and 1:5, however, permit a review by the Supreme Court on certification allowed by the Supreme Court in the latter's discretion. In the exercise of such discretion we have assumed jurisdiction in the present cause and have permitted the appeal to be heard on the merits.

The reversal of the trial court by the Appellate Division was put upon two grounds: First: 'that the court erred in refusing to consider the applicability of the regulations (of the Interstate Commerce Commission) in connection with his determination of defendant's motion for involuntary dismissal' and second, 'that the court should have permitted plaintiff to offer his expert witness to testify as to the dangerous character of the bromine notwithstanding the fact that the offer was not made until the conclusion of the argument on the motion for an involuntary dismissal.'

The appellate Division concluded that the case had been tried on the theory that an inter-state shipment was involved and that the trial court erred in not considering the legal effect and applicability of the Interstate Commerce Regulations in his determination of the motion for involuntary dismissal.

While it is well settled that Federal laws and regulations adopted pursuant thereto and in accordance therewith must be judicially noticed by the State courts, Lilly v. Grand Trunk Western Ry. Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411 (1942), Nickolopulos v. Lehrer, 132 N.J.L. 461, 40 A.2d 794 (E. & A. 1945), the evidence establishes, however, that the shipment involved in the instant case was wholly intrastate in character. The plaintiff contends that the defendant stipulated at the trial that the shipment was inter-state in character. The stipulation relied upon is as follows: 'We can stipulate that bromine is used in the process of manufacturing cables and that the cables are manufactured and shipped to all parts of the world for use.'...