Cox v. Miles, 17895-17896.
| Decision Date | 30 December 1969 |
| Docket Number | No. 17895-17896.,17895-17896. |
| Citation | 420 F.2d 279 |
| Parties | Lore K. COX and Lore K. Cox, Executrix of the Estate of Howard W. Cox, Deceased, Plaintiffs, v. Mountell MILES and Raymond Kurian, Defendants Third-Party Plaintiffs, v. Alonzo WILLIAMS, Leonard Chaplin, Rosalie M. Carroll, Michael J. Avallone and Transportation Vehicles, Inc., Third-Party Defendants. Lore K. Cox, Executrix of the Estate of Howard W. Cox, Deceased, Appellant in No. 17895 Mountell Miles, Appellant in No. 17896. |
| Court | U.S. Court of Appeals — Third Circuit |
Stanley M. Poplow, Philadelphia, Pa. (Poplow & Casper, Philadelphia, Pa., Theodore Tarter, Melnik, Tarter, Muller & Morgan, Camden, N. J., on the briefs), for Loree K. Cox.
H. Hurlburt Tomlin, Tomlin & Lewis, Camden, N. J., for Mountell Miles.
Anthony D. Buonaddona, Tuso & Gruccio, Vineland, N. J., for Raymond Kurian.
Before McLaughlin, FORMAN and ALDISERT, Circuit Judges.
Before McLAUGHLIN, FORMAN and ALDISERT, Circuit Judges.
This multiple automobile collision litigation is in the Federal Courts because of the parties' diverse citizenship. The date and place of the chain of accidents was September 26, 1965, on one of the approaches to the Walt Whitman Bridge, Gloucester City, Camden County, New Jersey. The Williams and Chaplin car and the Miles machine were proceeding in an easterly direction and collided with each other. Both cars then crossed the highway center line and struck the Cox automobile traveling west. After that there was a collision between the Kurian vehicle which had been proceeding westward behind the Cox machine and the latter. Howard Cox, the driver of his car, died from the injuries he received. His wife, a passenger with him, also sustained injuries. Mrs. Cox personally and as executrix of the estate of her deceased husband sued Miles and Kurian in the Federal District Court, District of New Jersey. Kurian sued Miles in the New Jersey State Court. The latter brought Williams in as a third party defendant and, according to the Miles brief, the Cox estate as "a third party defendant for contribution", i.e. on the proposition of whether Cox would be responsible to contribute to Miles in the event there was a judgment against the latter in favor of Kurian. The State cause was tried prior to any dispositive procedure in the Cox suit. In the State action the attorney for the Cox estate insurance carrier who appeared for the said estate, pleaded the issue of contributory negligence by Miles and Kurian. At the conclusion of the trial presentation on behalf of Miles, the Cox estate attorney moved for the dismissal of the Miles complaint against it. That motion was granted. There was no further participation in that trial by the Cox estate. The Kurian claim against Miles and Williams went to the jury. The latter was given a paper containing two interrogatories which was captioned, Kurian, plaintiff v. Miles, defendant-third party plaintiff v. Williams, third party defendant. There were two other related causes which do not concern us in these appeals. The first interrogatory was "Do you find any negligence or contributory negligence by Mountell Miles which was a proximate cause, of any collision on the date, time and place in question?" The jury's answer was "No". The second question was "Do you find any negligence by Alonzo Williams which was a proximate cause of any collision on the date, time and place in question?" The answer was "Yes".
Following the State court decision, Miles and Kurian moved for summary judgment in the District Court. Cox claims on the theory that the New Jersey judgment had determined that Miles and Kurian had not been negligent with reference to the accident and that the Cox causes were barred by res adjudicata or collateral estoppel. The District Court granted summary judgment in favor of defendants Miles and Kurian in the Cox estate suit against them. The holding was that the estate claim was barred by the doctrine of res adjudicata and that the defendants were entitled to such judgment as a matter of law. Similar motions against the individual claim of Mrs. Cox were denied.
Under New Jersey Civil Practice Rule 4:13-1 now R. 4:7-1 the cross claim for the Cox estate that Williams and Miles were contributorially negligent was permissive, not mandatory. As held in Middlesex, etc. Corp. v. Borough of Carteret, 35 N.J.Super. 226, 240, 113 A.2d 821, 829 (1955), New Jersey "has deliberately not adopted Rule 13(a) of the Federal Rules of Civil Procedure 28 U.S.C.A., compelling a defendant (generally speaking) to interpose all counterclaims arising out of the transaction that is the subject matter of the plaintiff's claim." Volume 2, New Jersey Practice, p. 163. Waltzinger Rev. Ed. states "Any counterclaim which cannot be calculated need not be filed and the failure to file a noncalculable counterclaim will not bar further action thereon in a separate suit."
The above doctrine as such is not challenged by either Kurian or Miles, indeed it is not even mentioned. They do make some attempt to argue that New Jersey decisional law justifies the elimination of both Cox causes. Reardon v. Allen, 88 N.J.Super. 560, 564, 213 A.2d 26, 28 is quoted as saying "Absent exceptional circumstances, a person who has a claim for property damage and personal injuries arising simultaneously should be required to join both claims in one action." (Emphasis supplied.) It should be stated in passing that Reardon allowed property and personal injury claims to be split, the first to be pursued by the insurance company subrogee and the second by the insured. It is strongly urged on behalf of Cox that since it was the Cox insurance carrier who represented the Cox estate when the latter was brought into the State suit by the then defendant Miles it follows that under the Reardon doctrine by itself, there could be no estoppel of the Cox actions. The Cox insurance carrier's position was not the same as in Reardon. Assuming the most unlikely hypothesis that the Cox car would be held responsible it would be within the realm of possibility that the Cox estate might be responsible for verdict or verdicts against it beyond its insurance protection. In any event there is no need of examining the problem at this time. We are satisfied that Reardon in no way assists Miles or Kurian. All that Reardon does at 88 N. J.Super. 564, 213 A.2d at 28 is suggest that "Absent exceptional circumstances, a person who has a claim for property damage and personal injuries, arising simultaneously should be required to join both claim in one...
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