Fortugno Realty Co. v. Schiavone-Bonomo Corp., SCHIAVONE-BONOMO

• Citation: 39 N.J. 382,189 A.2d 7
• Decision Date: 04 March 1963
• Docket Number: Nos. A--46,A--47,SCHIAVONE-BONOMO,s. A--46
• Parties: FORTUGNO REALTY COMPANY, a corporation of New Jersey, Plaintiff-Respondent and Cross-Appellant, v.CORPORATION, a corporation of New Jersey, Defendant-Appellant Appellant and Cross-Respondent, and Herman T. Stichman, Trustee of Hudson & Manhattan Railroad Company, a corporation of New Jersey in bankruptcy, Defendant-Cross-Respondent.
• Court: United States State Supreme Court (New Jersey)

Page 382

39 N.J. 382

189 A.2d 7

FORTUGNO REALTY COMPANY, a corporation of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. SCHIAVONE-BONOMO CORPORATION, a corporation of New Jersey, Defendant-Appellant Appellant and Cross-Respondent, and Herman T. Stichman, Trustee of Hudson & Manhattan Railroad

Company, a corporation of New Jersey in

bankruptcy, Defendant-Cross-Respondent.

Nos. A--46, A--47.

Supreme Court of New Jersey.

Argued Dec. 3, 1962.

Decided March 4, 1963.

H. Curtis Meanor, Jersey City, for defendant-appellant and cross-respondent, Schiavone-Bonomo Corp. and defendant-cross-respondent, Herman T. Stichman, trustee of Hudson & Manhattan RR. Co. (Lamb, Langan & Blake, Jersey City, attorneys, Arthur J. Blake and H. Curtis Meanor, Jersey City, of counsel).

Adrian M. Unger, Newark, for plaintiff-respondent and cross-appellant, Fortugno Realty Co. (Milton M. and Adrian M. Unger, Newark, attorneys, Adrian M. Unger, Newark, and Joseph Ginsburg, Summit, of counsel).

The opinion of the court was delivered by

HANEMAN, J.

Plaintiff filed suit seeking recovery for damage caused to its platform scale by defendants in connection with the weighing of a truck owned by Schiavone-Bonomo Corporation (Schiavone) and loaded with scrap metal being purchased by Schiavone from Herman T. Stichman, Trustee of Hudson & Manhattan Railroad Company (H. & M.). The suit sounded in negligence.

During the trial, plaintiff 'offered into evidence' N.J.S.A. 39:3--84, which, at the time of the incident in issue, read in pertinent part:

'Subject to the provisions of section 39:3--82 and the axle weight limitations of this section, no commercial motor vehicle, tractor, trailer or semitrailer shall be operated on any highway in this State having a combined weight of vehicle and load of more than (a) 30,000 pounds in the case of a 2-axle 4-wheeled vehicle, (b) 40,000 pounds in the case of a 3-axle 6-wheeled vehicle, (c) 60,000 pounds in the case of a tractor and semitrailer combination, and (d) 60,000 pounds in the case of a truck and trailer combination.

The gross weight imposed on the highway by the wheels of any 1 axle of a vehicle shall not exceed 22,400 pounds.'

The trial court sustained defendants' objection to the 'exhibit.' At the close of plaintiff's case, defendants moved for involuntary dismissal. The trial court reserved decision. Defendants then rested without submission of proof and moved for judgment, which the court granted. On plaintiff's appeal the Appellate Division unanimously affirmed as to H. & M., but reversed as to Schiavone and remanded for trial on the issue of its alleged negligence (one judge dissenting). Fortugno Realty Co. v. Schiavone-Bonomo Corp., 75 N.J.Super. 23, 182 A.2d 140 (App.Div.1962). Schiavone appeals as a matter of right. R.R. 1:2--1(b). Plaintiff, without seeking certification, cross-appeals the affirmance of the judgment in favor of H. & M., and the direction of the Appellate Division that costs should abide the outcome of the event of a new trial.

The issues before this court encompass (1) the right of plaintiff to cross-appeal against H. & M. without special leave; (2) the propriety of the trial court's refusal to recognize the relevancy of N.J.S.A. 39:3--84; (3) the propriety of the Appellate Division's reversal of the judgment in favor of Schiavone; (4) the propriety of the Appellate Division's affirmance of the judgment in favor of H. & M., and (5) the failure of the Appellate Division to award costs to plaintiff.

I

At the outset, we shall consider the contention of H. & M. that plaintiff cannot appeal as a matter of right.

Schiavone appeals against plaintiff as of right, because of the dissenting opinion in the Appellate Division. R.R. 1:2--1(b). Plaintiff, the sole respondent in that appeal, cross-appeals against H. & M., codefendant with Schiavone, without prior grant of a petition for certification. The cross-appeal is from that portion of the judgment favorable to H. & M., entered pursuant to a unanimous decision of the Appellate Division. The narrow question is: Where one of several parties to a civil action appeals to this court as a matter of right, may the respondent cross-appeal against any other party to the litigation as a matter of right?

This problem invokes the interrelation of R.R. 1:2--1(b), which reads,

'Appeals may be taken to this court from final judgments: * * *

(b) In causes where there is a dissent in the Appellate Division of the Superior Court; * * *.'

and R.R. 1:2--6, which reads,

'Any respondent may appeal from a judgment, order, or determination by serving and filing a notice of cross appeal, which shall be governed by the rules relating to notice of appeal.'

R.R. 1:2--1(b) was promulgated pursuant to Art. VI, § V, 1(b) of the New Jersey Constitution, which provides:

'Appeals may be taken to the Supreme Court: * * *

(b) In causes where there is a dissent in the Appellate Division of the Superior Court.'

Such appeal may be from all or any part of a judgment. See R.R. 1:2--8. Where an appellant appeals as a matter of right from a portion of the judgment, the respondent may cross-appeal against the appellant from any other aspect of the judgment.

In Sorokach v. Trusewich, 13 N.J. 363, at p. 368, 99 A.2d 790 at p. 793 (1953), this court said:

'The Constitution and our rules do not restrict the reconsideration to the question concerning which there is a dissent, but give the right of appeal 'in the cause' when this event occurs. The appeal under the constitutional provision is from the judgment and not from a portion of the respective opinions rendered.'

That reasoning is as well applicable to the right of a respondent to cross-appeal the whole or any part of a judgment against any other party to the cause. This result best comports with the sense of the applicable constitutional and rule provisions. Once a judgment is brought before this court pursuant to an appeal as of right, the entire assemblage of issues should be and is available for adjudication. Fragmented and possible inconsistent results are thus avoided. In this manner only may substantial justice be done, especially where the issues are manifold and the parties numerous. The technical necessity for a petition for certification to the Appellate Division is eliminated as the judgment has already been removed to the Supreme Court. Therefore, we hold that a respondent to an appeal taken as of right may as well cross-appeal in the manner provided by the Rules, against the appellant or any third party to the appeal in the Appellate Division as a matter of right.

Consequently, plaintiff, as a respondent to the main appeal, properly cross-appealed, as a matter of right, the judgment favorable to H. & M.

II

Since the questions of the applicability of N.J.S.A. 39:3--84 and the propriety of the Schiavone and H. & M. judgments logically lend themselves to concurrent discussions, we shall consider these contentions jointly. In connection with the defendant's motion, the testimony must be viewed most favorably to plaintiff, giving it the benefit of all legitimate inferences which are to be drawn therefrom. J.L. Querner, etc., Inc. v. Safeway Truck Lines, Inc., 35 N.J. 564, 566, 174 A.2d 201 (1961); Kopec v. Kakowski, 34 N.J. 243, 244, 168 A.2d 23 (1961).

With this guide in mind, the trial court should have reached the following conclusions for the purpose of the motion:

Plaintiff is a realty company. Both it and the C. & C. Trucking Company (C. & C.) are owned by the Fortugno family. C. & C. is engaged in hauling horse manure from Aqueduct and Belmont race tracks in New York to Evandale, Pennsylvania. Plaintiff leases to C. & C. certain lands in New Jersey upon which are situated an office, a garage, and a platform truck scale which was installed in 1946. The scale has a manufacturer's rated capacity of 60,000 pounds, and a ten to fifteen percent tolerance above that figure. It is used by C. & C. to weigh loads of manure before shipment. Prior to the incident on December 2, 1957 which gave rise to this litigation, the maximum weight placed upon these scales was between 60,000 and 62,000 pounds. Plaintiff, for a period of time prior to December 2, 1957 (the exact duration of which is not disclosed), had permitted both Schiavone, a scrap dealer, and H. & M. to utilize its scales without charge. The apparent purpose of the weighing was to ascertain the weight of commodities in connection with the purchase or sale thereof By Schiavone or H. & M. Although plaintiff allowed its scales to be so used as an accommodation, its employee, Ruble, a licensed weighmaster and employee of plaintiff, was paid fifty cents for a certificate of the ascertained weight of each load. It was Schiavone's custom, after its loaded trucks were weighed at plaintiff's yard, to check the weight thus determined by a second weighing on its own 100,000 pound scale.

The details of the original arrangement under which Schiavone and H. & M. were granted leave to use the scales are not revealed. However, it appears that by virtue of individual agreements made some years prior to 1957 between plaintiff and Schiavone and H. & M., they have each employed the scales at will and without separate antecedent requests. Although it was not shown how often this practice was followed, it was testified that the Schiavone weighings occurred approximately ten times per year.

On November 6, 1957 Schiavone entered into an agreement with H. & M. to purchase various items of scrap metal. The H. & M.-Schiavone contract described the items being sold, as follows 'Lot A--11 General Electric Traction Motors, Model No. 259 complete.

Lot B--3 General Electric Traction Motor Shells, Model No. 259.

Lot C--16 General Electric Traction Motors, Model No. 212 complete (armatures and shells not all assembled).

Estimated weights

Lot A 16.7 G.T.

Lot B 2.7 G.T.

Lot C 39.14 G.T.'

The contract further provided:

'6. Each truckload of material removed...