Dunbaden v. Castles Ice Cream Company

• Decision Date: 31 January 1927
• Citation: 135 A. 886,103 N.J.L. 427
• Docket Number: 89
• Court: New Jersey Supreme Court
• Parties: WALTER DUNBADEN, PLAINTIFF-RESPONDENT, v. CASTLES ICE CREAM COMPANY, A CORPORATION, DEFENDANT-APPELLANT, AND FRED GRUNDMAN AND JOHN NEWMAN, DEFENDANTS-RESPONDENTS

135 A. 886

DUNBADEN

v. CASTLES ICE CREAM CO. et al.

No. 89.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1927.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Walter Dunbaden against the Castles Ice Cream Company and others for damages.From a judgment for plaintiff against the named defendant, it appeals.Affirmed.

Kellogg & Chance, of Jersey City, for appellant.

Frank W. Heilenday, of Bayonne, for respondent Dunbaden.

Pomerehne, Laible & Kautz, of Newark, for respondent Grundman.

Kinkead & Klausner, of Jersey City, for respondent Newman.

KATZENBACH, J.This is an appeal by one of the defendants below from a judgment of the Supreme Court.The action was commenced in the Supreme Court and was referred by a justice of the Supreme Court to the judge of the court of common pleas of Union county for trial.The defendants against whom the action was instituted were three in number.They were the Castles Ice Cream Company(the appellant), Fred Grundman, and John Newman.The case arose out of a collision of automobiles.On November 4, 1924(election day), Grundman was driving a Ford roadster owned by the Castles Ice Cream Company in a northerly direction on St. George avenue in the city of Rahway.Immediately behind the Ford roadster was a Cadillac car and behind the Cadillac car was a Ford sedan owned by Walter Dunbaden(the plaintiff below).The two cars last mentioned were being driven in a northerly direction.There were three passengers in Dunbaden's car.On the same avenue the defendant Newman was being driven southwardly by one Coleman, in a Buick car owned by Newman.The Ford roadster and Buick car collided as Grundman, who was driving the Ford roadster, was in the act of turning to the left to pass a truck going in the same direction as the Ford roadster.The collision caused the Buick car to swing to the left and strike the Ford sedan driven by Dunbaden (the plaintiff).Newman claimed the collision was due to the act of Grundman.Grundman contended that Newman had caused the collision.Dunbaden and each of the three persons who were passengers in his car instituted suits in which the Castles Ice Cream Company, Grundman, and Newman were joined as defendants.Each plaintiff recovered a verdict against the Castles Ice Cream Company.No verdicts were found against Grundman or Newman.The Castles Ice Cream Company has appealed the judgment entered in favor of Dunbaden.The verdict rendered in this action reads as follows:

"We find for the plaintiff and against the defendantCastles Ice Cream Company, a corporation, and assess the damages of the plaintiff, Walter S. Dunbaden, in the sum of $500. and so say they all."

The grounds of appeal, seven in number, the appellant has elected to argue under four heads.The first point urged for a reversal of the judgment rendered is that it is based upon a verdict which imports repugnant, contradictory, and irreconcilable findings in that the jury rendered a verdict against the appellant, the master, and exonerated the servant, Grundman.It is argued that a verdict which holds the master liable on the doctrine of respondeat superior and acquits the servant is equivalent to a finding that no cause of action exists against the master and will not support a judgment against the master.A judgment based on such a verdict, it is insisted, should be set aside, or judgment entered for the master notwithstanding the verdict.This view has precedents to sustain it.Some of the leading cases are Pangburn v. Buick Motor Co., 211 N. Y. 228, 105 N. E. 423;Doremus v. Root, 23 Wash. 710, 63 P. 572, 54 L. R. A. 649;D. B. Loveman Co. v. Bayless, 128 Tenn. 307, 160 S. W. 841, Ann. Cas. 1915C, 187;Fimple v. Southern Pacific Co., 38 Cal. App. 727, 177 P. 871;Williams v. Hines, Director General, 80 Fla. 690, 86 So. 695;Southern Railway Co. v. Harbin, 135 Ga. 122, 68 S. E. 1103, 30 L. R. A. (N. S.) 404, 21 Ann. Cas. 1011.In the case last cited the verdict was set aside and a new trial granted.

In other jurisdictions it has been held that in an action against master and servant jointly, based solely upon the doctrine of respondeat superior, the master may be held liable although the servant is exonerated.The reason assigned for this rule is that the plaintiff is entitled to the verdict given him by the jury and for the failure of the plaintiff in obtaining a verdict against another equally responsible the plaintiff may have a grievance, but the defendant adjudged responsible has none.The leading cases supporting this view are Buskirk v. Caudill, 181 Ky. 45, 203 S. W. 864;Weil v. Hagan, 166 Ky. 750, 179 S. W. 835;Chesapeake, etc., R. Co. v. Dawson, 159 Ky. 296, 167 S. W. 125;Illinois Cent. R. Co. v. Murphy, 123 Ky. 787, 97 S. W. 729, 11 L. R. A. (N. S.) 352;Van Gundy v. Packard Motor Car Co., 114 Kan. 366, 219 P. 503.

Some courts have held that the failure of a jury to turn a verdict against the servant affords no ground to set aside a judgment rendered against the master because the verdict which ignores the servant should not be deemed or construed as a finding of absence of negligence on the part of the servant, but should be regarded as no finding as to the servant.Upon the rendition of such a verdict the case stands as to the servant as if it had never been tried and the master has whatever right he ever had against his servant.It will be observed that the verdict rendered in the present case is silent as to Grundman.We think that such a verdict should be regarded as no finding against him.This view has support in decisions in this state.In Ben v. Eastern Motor Company, 94 N. J. Law, 34, 109 A. 286, a judgment against the master alone was affirmed.

In Dumphy v. Thompson(N. J. Sup.)130 A. 639(not yet officially reported), there was a verdict in favor of the defendant against two of four plaintiffs, and a verdict in favor of two of the plaintiffs.The court said:

"We cannot perceive on what legal principle the defendant can avail herself of the failure of the jury to find a verdict in favor of the infant [plaintiff], and for that reason be entitled to have the verdict in favor of the plaintiffs set aside."

In Feury v. Reid Ice Cream Company(N. J. Sup.)126 A. 462(not yet officially reported), a verdict was rendered against the master alone.The court stated that although the servant was a defendant the situation was as if there had been a mistrial as to the servant and that the master was not injured by the failure of the jury to find the servant guilty.The appellant seeks to distinguish this case from the present by the fact that in the Feury Case there was evidence of the defective condition of the brakes of the car for which the servant was not responsible.While this is true, the court would probably from what it said have held the same view had there been no evidence in the case of defective brakes.This makes it unnecessary to consider the effect in the present case of the evidence of Grundman's incompetence as a driver relied on by the respondent to bring the present case in line with the Feury Case.

The decisions in this state which tend to support the view of the law on this subject herein expressed are supported by decisions in other jurisdictions.Some of the cases thus holding are Benson v. Southern Pac. Co., 177 Cal. 777, 171 P. 948;Whitesell v. Joplin, etc., Ry. Co., 115 Kan. 53, 222 P. 133;Melzner v. Raven Copper Co., 47 Mont. 351, 132 P. 552;Dalby v. Shannon &...