Farkas v. Board of Chosen Freeholders of Middlesex County

• Decision Date: 24 March 1958
• Docket Number: No. A--662,A--662
• Citation: 139 A.2d 779,49 N.J.Super. 363
• Parties: Joseph FARKAS, Plaintiff-Appellant, v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MIDDLESEX, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 363

49 N.J.Super. 363

139 A.2d 779

Joseph FARKAS, Plaintiff-Appellant, v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MIDDLESEX Defendant-Respondent.

No. A--662.

Superior Court of New Jersey Appellate Division.

Argued March 17, 1958.

Decided March 24, 1958.

Robert N. Wilentz, Perth Amboy, for appellant (Wilentz, Goldman, Spitzer & Sills, Perth Amboy, attorneys; Matthias D. Dileo, Trenton, of counsel).

Samuel V. Convery, Perth Amboy, for respondent (Sam Weiss, Newark, on the brief).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiff appeals from a County Court judgment of dismissal entered in defendant's favor on its motion made at the conclusion of plaintiff's opening. The suit was for injuries suffered when plaintiff was thrown from his motorcycle while riding along Main Street in Woodbridge Township. The complaint charged defendant with negligent maintenance of the road. The opening of plaintiff's counsel exposed the following factual contentions:

At the time of the accident plaintiff, a motorcycle policeman, was proceeding along Main Street in the course of his official duties. While passing over that portion of the street which is elevated above the New Jersey Turnpike and the Garden State Parkway, his motorcycle struck a hole in the macadam, he was catapulted some distance through the air and suffered severe bodily injuries.

Prior to 1949 Main Street was a county road which ran straight through the area where the three-level construction of Turnpike, Parkway and Main Street is located. At that time defendant county repaired and maintained the street along its entire length. In 1949 the Turnpike or the Parkway barricaded Main Street on either side of the present overpass.

The portion of Main Street on the upper level had been in a state of disrepair for some time prior to the accident. This fact was known to defendant through its authorities, agents and employees, and numerous complaints had been received about the condition. Plaintiff's counsel, in his opening, alleged that the State apparently had not done a good paving job when the overpass was constructed. The county had undertaken to repair Main Street at this point on several occasions during the months preceding the accident, when it fell into disrepair because of trucks and other vehicular traffic. Counsel charged that the work was of a temporary nature only, and negligently done, apparently because the county felt that the overpass was not its responsibility, but the State's. Only two days before the accident plaintiff and his superior officer had seen county employees repairing the road on the overpass. Further repairs were made immediately after the accident. (We were informed at oral argument that the county road department foreman was in charge of the work.)

When plaintiff had concluded this factual recital in his opening, defendant moved for judgment for failure to establish a cause of action. The court granted its motion, apparently on the primary ground that defendant's action in making the repairs was without authority and therefore Ultra vires; and secondly, that the repairs were made without the direction and participation of the county, its freeholder board never having formally authorized its agents and servants to repair the road.

The test to be applied on a motion for dismissal made after the plaintiff's opening is the same as where the motion is made at the close of plaintiff's case. The motion admits the truth of plaintiff's proffered evidence and every inference of fact that can logically and legitimately be drawn therefrom which is favorable to him. Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170, 113 A.2d 13 (1955). Indeed, the rule should be even more liberally applied in the case of a motion made at the conclusion of plaintiff's opening, since he has not yet had the opportunity of presenting his testimony, but only a statement of its intended content.

Our present practice does not favor a dismissal on plaintiff's opening to the jury. A motion for dismissal should never be granted unless the facts are undisputed and the law free from doubt. As was pointed out in Sherman v. Josephson, 44 N.J.Super. 419, 425--426, 130 A.2d 871 (App.Div.1957), at this point in the proceedings the trial court 'is justified in exercising a most liberal discretion in disposing of the matter. The case is rare indeed where the interests of justice will not be served by withholding action on or by denying the motion and receiving the plaintiff's proof.'

Counsel's opening statement is ordinarily intended to do no more than inform the jury in a general way of the nature of the action and the basic factual hypothesis projected so that they may better be prepared to understand the evidence. It is normally expected to be summary and succinct. It is not enough that the statement is lacking in ultimate definiteness; rather, it must clearly appear, after resolving all doubts in plaintiff's favor, that no cause of action whatsoever exists. Best v. District of Columbia, 291 U.S. 411, 415, 54 S.Ct. 487, 78 L.Ed. 882 (1933). And see Snyder v. I. Jay Realty Co., 46 N.J.Super. 323, 328, 134 A.2d 749 (App.Div.1957); Ross v. Orr, 3 N.J. 277, 284, 69 A.2d 730 (1949).

Defendant's argument on its motion for dismissal before the trial court was that the part of Main Street passing over the Turnpike and Parkway had never been accepted by Middlesex County; the county had never formally undertaken the responsibilities which go with a county road, including repair, so that there was no direction or participation on its part which would expose it to liability for the conduct of its agents or employees in repairing the road, even if those repairs amounted to active wrongdoing. This argument, as has already been pointed out, was one of the reasons advanced by the trial court for granting the motion of dismissal, the other being that making repairs on this particular stretch of road, actually under State control, was Ultra vires.

On the present appeal defendant apparently completely abandons these reasons for granting its motion of dismissal, for they are not advanced in the counter-statement of questions involved or in the body of its brief. Although plaintiff's brief is devoted to refuting the grounds relied on below, the answering brief proceeds to develop a completely different reason for upholding the dismissal. The argument now is that plaintiff's opening was clearly deficient in an element basic to his cause of action, for it revealed that he would be unable to prove the existence of active wrongdoing on defendant's part. Defendant further argues there was nothing in the opening to show that the result of defendant's alleged intervention by undertaking repairs to the overpass was to create a new, different, additional or increased hazard.

Defendant's counsel made no mention at the oral argument of the reasons advanced on the trial level for the dismissal of the action until the court noted their abandonment in the brief. It was only at this point that he sought to salvage them by suggesting that they not be considered abandoned if they might possibly support the judgment under attack. We do not approve of the practice of counsel filing an appeal brief in support of the judgment below, devoted entirely to a ground other than that relied upon in the trial court, and then at oral argument trying to recapture and argue the reason or reasons advanced below. Such practice has the potential of completely misleading the appellant--although that did not happen in this case because, as noted, plaintiff devoted his original brief to demolishing the...