Evangelista v. Public Service Coordinated Transport
| Decision Date | 10 April 1950 |
| Docket Number | No. A--135,A--135 |
| Citation | 72 A.2d 534,7 N.J.Super. 164 |
| Parties | EVANGELISTA et al. v. PUBLIC SERVICE COORDINATED TRANSPORT. |
| Court | New Jersey Superior Court — Appellate Division |
Stephen Mongiello, Hoboken, argued the cause for appellants.
Luke A. Kiernan, Jr., Newark, argued the cause for respondent (Carl T. Freggens, Newark, attorney).
Before Judges McGEEHAN, COLIE and EASTWOOD.
The opinion of the court was delivered by
McGEEHAN, S.J.A.D.
This appeal is from a judgment on the pleadings entered in the Hudson County Court, Law Division, in favor of the defendant and against the plaintiffs.
The complaint alleged that Anna Evangelista, while alighting from a trolley car owned and operated by the defendant, was thrown to the ground, due to the negligence of the defendant, and sustained personal injuries. She sued to recover for her personal injuries and her husband, John, joined in the suit to recover for the loss of consortium and for moneys expended in an effort to cure her. The answer admitted ownership and operation of the trolley car, denied the other allegations of the complaint, and set up defenses of contributory negligence and assumption of risk and a fourth defense 'that subsequent to the happening of said alleged accident the plaintiff Anna Evangelista, executed and delivered a release under seal discharging and barring any and all claims for injuries arising out of the said alleged accident.' The plaintiffs' amended reply to the fourth defense denied the allegations thereof and charged that whatever release was procured 'was obtained under fraud and duress and under misrepresentation by the defendant and its agents' followed by a statement of the particulars of the wrong. See Rules 3:7--1 and 3:9--1. The defendant's motion for judgment was granted on the ground that the allegations in the plaintiffs' amended reply 'did not set forth a defense at law to defendant's fourth separate defense in the answer.'
The plaintiffs have chosen to attack the judgment on the single ground that the charge of fraud and the particulars thereof contained in the reply were sufficient at law, for the purposes of the motion, to put in question the validity of the release signed by Anna.
The power to grant judgment on the pleadings should not be exercised unless the legal insufficiency is clear and palpable. For the purposes of the motion, the defendant admits the truth of all facts well pleaded in the reply and all legitimate inferences which can be drawn therefrom. Kelly v. Hoffman, 137 N.J.L. 695, 61 A.2d 143, 5 A.L.R.2d 951 (E. & A. 1948). The motion for judgment on the pleadings is not favored by the courts; and pleadings alleged to state no cause of action or defense will be liberally construed in favor of the pleader. 41 Am.Jur., Pleading, § 336; cf. West v. Marritz, 109 N.J.L. 321, 162 A. 557, (E. & A. 1932).
Plaintiffs contend that the amended reply sufficiently alleges a legal defense of fraud which, if supported by the evidence, would, at least, raise a jury question. When a defendant pleads a release, the plaintiff may attack it on the ground of fraud if the signature was obtained by fraud or imposition practiced upon the signer with intent to deceive him as to the purport of the paper signed, and when the fraud is in dispute it is a question for the jury. Mannion v. Hudson & Manhattan R.R. Co., 125 N.J.L. 606, 17 A.2d 546 (Sup.Ct.1941), affirmed O.B. 127 N.J.L. 230, 21 A.2d 735 (E. & A. 1941); Fagan v. Central Railroad Co., 94 N.J.L. 454, 111 .a. 32 (E. & A. 1920); Palmer v. Tomlin, 104 N.J.L. 215, 141 A. 2 (Sup.Ct.1928); McDonald v. Central R.R. Co., 89 N.J.L. 251, 98 A. 391 (E. & A. 1916). While the amended reply is inartistically drawn, we think its allegations, considered in the light most favorable to the plaintiffs do plead fraud sufficiently to withstand the defendant's motion and to permit the plaintiffs to put in their evidence.
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...for judgment on the pleadings. See Rappaport v. Nichols, 31 N.J. 188, 193, 156 A.2d 1 (1959); Evangelista v. Public Service Coordinated Transp., 7 N.J.Super. 164, 167, 72 A.2d 534 (App.Div.1950). The complaint set forth that, upon the call of the township, its municipal attorney was under t......
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...construed in favor of the pleader, is clearly and palpably insufficient in a legal sense. Evangelista v. Public Service Coord. Transport, 7 N.J.Super. 164, 72 A.2d 534 (App. Div. 1950). With these standards in mind it remains to examine the complaints which are asserted to allege a purposef......
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...particularly those grounded upon technical imperfections, are not now favored by the courts. Evangelista v. Public Service Coordinated Transp., 7 N.J.Super. 164, 167, 72 A.2d 534 (App.Div.1950). The arbitrary, capricious, impracticable or unwarranted state of mind of a fiduciary may be alle......