Ettin v. Ava Truck Leasing, Inc.

• Citation: 242 A.2d 663,100 N.J.Super. 515
• Decision Date: 03 May 1968
• Docket Number: No. A--368,A--368
• Parties: Donald ETTIN, Plaintiff-Respondent and Cross-Appellant, v. AVA TRUCK LEASING, INC., Defendant-Appellant and Cross-Respondent. Donald ETTIN, Plaintiff-Respondent and Cross-Appellant, v. SWEETS CO. OF AMERICA, INC., Defendant-Respondent and Cross-Appellant.
• Court: New Jersey Superior Court – Appellate Division

Page 515

100 N.J.Super. 515

242 A.2d 663

Donald ETTIN, Plaintiff-Respondent and Cross-Appellant, v. AVA TRUCK LEASING, INC., Defendant-Appellant and Cross-Respondent.

Donald ETTIN, Plaintiff-Respondent and Cross-Appellant, v. SWEETS CO. OF AMERICA, INC., Defendant-Respondent and Cross-Appellant.

No. A--368.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 22, 1968.

Decided May 3, 1968.

Gerald Conway, Newark, for defendant-appellant and cross-respondent, Ava Truck Leasing, Inc. (Schreiber & Lancaster, Newark, attorneys).

William V. Roveto, Union City, for defendant-respondent and cross-appellant, Sweets Co. of America, Inc. (Moser, Roveto & McGough, Union City, attorneys).

Bernard Chazen, hoboken, for plaintiff-respondent and cross-appellant (Baker, Garber, Chazen & Duffy, Hoboken, attorneys, Nathan Baker, Hoboken, of counsel).

Before Judges SULLIVAN, FOLEY and LEONARD.

The opinion of the court was delivered by

LEONARD, J.A.D.

Involved herein are two separate personal injury motor vehicle accident cases which were instituted by plaintiff against separate defendants and consolidated for trial.

On April 4, 1961, at or about 3:30 P.M., plaintiff, a salesman for Feldman Food Products, was operating a truck leased from defendant Ava Truck Leasing, Inc. (Ava) in a southerly direction on Park Avenue in Hoboken when he collided with a parked tractor-trailer from which merchandise was being delivered to the plant of defendant Sweets Co. of America, Inc. (Sweets).

Plaintiff testified that immediately before the accident he had traversed the crest of the Park Avenue Bridge. As he was descending the bridge at or about 20 to 25 miles per hour, he allegedly noticed the tractor-trailer parked across the sidewalk fronting Sweets' warehouse. The tractor-trailer was blocking both lanes of southbound traffic on Park Avenue.

Plaintiff further testified that he attempted to apply his foot brake, but that the brake went down 'flat against board.' Purportedly, he then started pumping his brake, but 'nothing resulted from that.' Plaintiff stated that he attempted to shift into a lower gear, but was unable to do so. He asserted that he tried to apply his hand emergency brake, but could not slow his truck by such a procedure.

Plaintiff related that he had noticed that several cars were stopped behind the parked tractor-trailer. These cars, according to plaintiff, could not go around the tractor-trailer because of heavy northbound traffic on Park Avenue. Plaintiff testified that he could not move his truck into the left lane because such a maneuver would have produced a head-on collision with an automobile in the northbound traffic. Had plaintiff proceeded straight, he allegedly would have hit the rear of one of the cars stopped on account of the trailer. This, according to plaintiff, would have set up a 'chain reaction of several cars.' Therefore, plaintiff chose to pull to the right into the slow lane and crash into the center of the side of the trailer.

Originally, plaintiff instituted an action against Ava, Ventre Trucking Company (Ventre), Pan Atlantic Steamship Corporation (Pan Atlantic) and Kelly Mitchell (Mitchell). Ventre and Pan Atlantic allegedly had proprietary interests in the tractor-trailer. Mitchell was the operator of the parked vehicle at the time of the accident.

Plaintiff dismissed his action against Pan Atlantic. The jury returned a verdict of $9000 in favor of plaintiff against Ava and verdicts of no cause of action in favor of defendants Ventre and Mitchell. However, the trial court granted Ava a new trial, a decision which we affirmed. Plaintiff has never appealed from the judgments in favor of defendants Ventre and Mitchell.

Plaintiff also brought an independent action against Sweets, alleging that Sweets 'directed and participated in the improper and illegal (negligent) parking' of the tractor- trailer at its plant, and that Sweets, in so doing, created and maintained a public nuisance.

The suit against Sweets was consolidated with the retrial of plaintiff's action against Ava. At the close of the trial of the consolidated actions, the jury returned a verdict for $17,000 in favor of plaintiff and against both Ava and Sweets. Both defendants moved before the trial court for judgments n.o.v. or, in the alternative, for a new trial. Ava at this time also moved to amend its answer to assert a cross-claim for contribution against Sweets. It had not previously asserted such a claim.

The trial judge granted Sweets' motion for judgment n.o.v. on the ground of collateral estoppel but denied its motions for a new trial and judgment n.o.v. to the extent that they were based on the alleged failure of plaintiff to make out a Prima facie case of negligence against Sweets and on purported trial errors. All of Ava's motions were denied.

Ava appeals from the judgment of the trial court against it, and from the denial of its motions for a new trial, and from the denial of its motion for permission to amend its answer to assert a cross-claim against Sweets. Ava also appeals from the judgment n.o.v. entered in favor of Sweets and against plaintiff.

Sweets, 'in order to protect its rights and interests' in the event of a reversal of its judgment n.o.v., cross-appeals from the judgment rendered against it based upon the jury verdict for plaintiff and from the partial denial of its motions for judgment n.o.v. and for a new trial.

Plaintiff, 'for protective purposes,' cross-appeals from the judgment n.o.v. entered in favor of Sweets.

I

We consider first Ava's appeal from the judgment in favor of plaintiff and from the trial court's denial of Ava's post-trial motions with respect thereto.

Initially, Ava contends that the trial court erred in striking the issue of contributory negligence as a defense to the breach of warranty claim against it, refusing to charge the jury on contributory negligence as a possible defense for Ava, and depriving Ava of the right to be heard on that defense in summation to the jury.

Plaintiff's complaint and the pretrial order charged Ava with both negligence and breach of warranty. Ava in its answer and in the pretrial order asserted that plaintiff was guilty of contributory negligence. In the openings plaintiff made reference to both theories of liability against Ava, and the latter raised the issue of plaintiff's contributory negligence.

However, after the close of the evidence and prior to summations and charge, plaintiff moved to abandon his negligence claim against Ava and stated that he would proceed against Ava solely upon the theory of breach of implied warranty. Upon the court's dismissal of the negligence count against Ava, plaintiff moved for a dismissal of Ava's contributory negligence defense. This motion was granted, the court being of the opinion tht the only form of contributory negligence that could be a defense to a breach of warranty claim was that comparable to assumption of risk.

The trial court erred in striking the defense of contributory negligence from plaintiff's breach of warranty action against Ava. See Maiorino v. Weco Products Co., 45 N.J. 570, 573--575, 214 A.2d 18 (1965). Contributory negligence in its broad sense is a defense to a strict liability claim. Maiorino, supra, at p. 574, 214 A.2d 18. See also Tanga v. Tanga, 94 N.J.Super. 5, 11, 226 A.2d 723 (App.Div.1967). Therefore, the portion of the lower court's charge which specifically stated that contributory negligence was not a defense to plaintiff's action against Ava was erroneous.

However, despite this we hold that Ava is not entitled to overturn the judgment below. Under the unique circumstances here present the affirmance of the judgment is not a denial of substantial justice to Ava. See R.R. 1:5--3(b); R.R. 2:5.

The issue of plaintiff's contributory negligence was submitted to the jury in the consolidated action of plaintiff against Sweets, and an appropriate charge on behalf of Sweets was given regarding that defense. The jury, by rendering a verdict in favor of plaintiff and against Sweets, necessarily made a determination that plaintiff was not contributorily negligent.

As previously noted, the contributory negligence defense was not stricken from Ava's answer until all the testimony had been adduced. Counsel for both Ava and Sweets each thoroughly cross-examined plaintiff as to his driving and as to whether plaintiff knew or should have known that the brakes of his truck were defective. Ava does not contend that there could be any way, under the evidence submitted, that plaintiff could have been contributorily negligent as to it and not as to Sweets. Thus we have no reason to doubt that if the issue of plaintiff's contributory negligence had been properly submitted in Ava's case, the jury's verdict would have been the same, i.e., that plaintiff was free from contributory negligence.

Ava's argument that it was prejudiced by the denial of an opportunity to address the jury in summation as to this issue is without merit. Its counsel was not deprived of a closing. Therefore, Aladdin Oil Burner Corp. v. Morton, 117 N.J.L. 260, 187 A. 350 (Sup.Ct.1936), on which it relies, is inapposite. In his summation Ava's counsel spent considerable time discussing the manner in which plaintiff operated his truck, commented upon the evidence regarding when plaintiff first saw the parked tractor-trailer, and referred to plaintiff's inconsistent testimony concerning this factual issue. Likewise, Sweets' attorney, in his closing, specifically mentioned plaintiff's contributory negligence as an issue in the case and also discussed in detail the evidence pertaining to plaintiff's operation of his truck. Sweets' counsel raised the questions of when plaintiff first saw the tractor-trailer, why plaintiff failed to turn right at the bottom of the hill and use an open lane, whether plaintiff had been speeding and whether plaintiff had failed to properly control his vehicle. The attorney...