Frawley v. Tenafly Transp. Co.

• Citation: 113 A. 242
• Decision Date: 07 March 1921
• Docket Number: Nos. 51-53.,s. 51-53.
• Parties: FRAWLEY v. TENAFLY TRANSP. CO. (three cases).
• Court: United States State Supreme Court (New Jersey)

113 A. 242

FRAWLEY

v. TENAFLY TRANSP. CO. (three cases).

Nos. 51-53.

Court of Errors and Appeals of New Jersey.

March 7, 1921.

(Syllabus by the Court.)

The Chief Justice and Swayze, Katzenbach, and Williams, JJ., dissenting.

Appeal from Supreme Court.

Separate actions by Teresa C. Frawley, individually and as administratrix of the estate of John F. Frawley, deceased, and of Vincent C. Frawley, deceased, against the Tenafly Transportation Company. Judgment for plaintiff in each case, and defendant appeals. Affirmed.

John W. McGeehan, Jr., of Newark, for appellant.

Guy L. Fake, of Rutherford, and Harold Bouton, of Newark, for respondent.

WALKER, Ch. This is an appeal from each of three judgments in the Supreme Court recovered by the above-named plaintiff in three actions at law brought in the Supreme Court tried at the Bergen circuit before Cutler, J., and a jury. The cases, which arose out of the same accident, were tried together ana involve common questions of law and fact. All of the questions raised on these appeals apply equally and the same to each of the three cases, were argued together, and will be so decided.

The facts appearing from the evidence are as follows: On April 25, 1919, the plaintiff, Teresa C. Frawley, John F. Frawley, her husband, and Vincent C. Frawley, her son, were passengers in a jitney bus which collided with another jitney bus on Jay street in the borough of Tenafly, and in the collision each of the persons named sustained serious injuries, as a result of which John F. Frawley and Vincent C. Frawley died, and the three suits were instituted by Teresa C. Frawley individually for personal injuries sustained by her, one by the same Teresa C. Frawley as administratrix ad prosequendum of her deceased husband's estate, and one by the same Teresa C. Frawley as administratrix ad prosequendum of her deceased son's estate. Both of the jitney busses which figure in the accident had the same ownership, but in whom the title was vested or who employed the chauffeurs of the busses at the time of the accident are questions which were submitted to the trial court and are involved in this appeal. The defendant-appellant in his brief admits that the evidence esstablishes that one or both of the chauffeurs of the jitney busses at the time of the accident was, or were, negligent, and that such negligence was the proximate cause of the plaintiff's and her intestates' injuries. The three suits were originally against the defendant-appellant as a corporation, Harry Sabin, Martin M. Rothbart, Ernest Capitani and David Shiftman, as copartners, jointly and severally as individuals doing business under the name of Tenafly Transportation Company. The defendant company denied that it was a corporation on April 25, 1919, the date of the accident, denied that it was the owner of the busses in question, and denied its negligence, or the negligence of its servants or employes. It pleaded affirmatively that it was not a corporation on April 25, 1919, and that it did not own or operate, by its servants or otherwise, the jitney busses referred to, and that its certificate of incorporation was filed with the secretary of state on April 29, 1919, having been recorded in the Bergen county clerk's office on April 26, 1919. These facts as to recording and filing of the certificate of incorporation were proved. Therefore, in order to recover, the plaintiff-respondent was required to show that the defendant company was a de facto corporation when the accident occurred, and was at that time the owner of the busses and the employer of the chauffeurs who operated them.

When the testimony was all in and the case rested, a motion was made for a nonsuit on behalf of the defendant company, upon the ground that its corporate existence at the time of the accident had not been proved, and upon the further ground that the ownership and operation of the busses at that time had not been proved. This motion was denied. A motion was then made to nonsuit on behalf of the defendant Harry Sabin. Plaintiffs counsel conceded that nothing had been shown against him and consented to the nonsuit, which was ordered entered. Motion was then made to nonsuit as to the other three defendants, namely, Rothbart, Capitani, and Shiftman, on the ground that the evidence did not show any liability on their part This motion was overruled. A motion was then made to compel the plaintiff to elect whether to proceed against the corporation or the other three defendants remaining in the case. This motion was overruled, and an exception prayed and allowed. The defendant then rested and moved for the direction of a verdict upon the ground that the plaintiff had not proved corporate existence at the time of the accident, the same as in the motion to nonsuit. Motion was also renewed to make plaintiff elect which of the defendants she would proceed against, either the corporation or the individuals. The motion to direct a verdict was refused, and an exception granted. The motion to compel an election was refused, and an exception granted. The latter motion was out of place at that time. It had nothing to do with the direction of a verdict, and had already been made and refused.

The trial judge charged the jury that they should find what party was liable, whether the corporation or the individual defendants. The verdicts as rendered by the jury do not appear in the state of the case. The postea in each case recites that the jury rendered a verdict against the defendant Tenafly Transportation Company, Incorporated, and in favor of the plaintiff for the amount named in it. It may be presumed that they found in favor of the individual defendants.

On April 2, 1919, the busses in question were owned by the New Jersey Transportation Company, and on that day were sold to the four individuals above named. They commenced the operation of the busses in their business. On April 9, 1919, they applied to the borough of Tenafly in the name of the Tenafly Transportation Company, Incorporated, for an owner's license for the two busses in question, and filed with the borough an insurance policy in the name of the corporation, pursuant to the provisions of a borough ordinance, agreeing therein to operate the busses in strict conformity with the provisions of the ordinance. This application was granted on April 10, 1919. On April 11th they applied for and obtained from the authorities at Camp Merritt a license to operate the busses at the camp in the name of Tenafly Transportation Company, representing it as a corporation. On April 23, 1919, Rothbart, Shiftman, and Capitani signed and sealed a certificate of incorporation of the "Tenafly Transportation Company." This certificate was received in the Bergen county clerk's office on April 26, 1919, and there recorded. It was filed in the office of the secretary of state on April 29, 1919. On April 23, 1919, the date on which the certificate of incorporation was signed, Rothbart, Shiftman and Capitani made and executed to the "Tenafly Transportation Company, a corporation," for the consideration therein expressed, a bill of sale for ten busses described by numbers in a schedule annexed, including the two in question. The bill of sale ran to the corporation, its successors and assigns. These three men intended to form a corporation. The first certificate drawn for them was not executed because they changed their minds about the amount of capital stock. The second certificate, the one executed April 23, was drawn from instructions previously given by the three men. It was sent to them by counsel with directions to have it executed, which they did. It was returned to counsel on or about April 24, 1919, and on April 25 he mailed it to the Bergen county clerk, who recorded it and in a day or so returned it to counsel, and he then on or about April 27, mailed it to the secretary of state for filing. On April 25, 1919, the day of the accident, and previously the company had an office for the transaction of business in the borough of Tenafly, where a stenographer and bookkeeper were employed. Drivers of the two cars in question were employed and paid with money contained in envelopes on which was printed "Tenafly Transportation Company, Incorporated." There was also a garage connected with the office, at which the cars were kept, and Rothbart, one of the incorporators, was acting as president of the corporation, by agreement with the other two incorporators. The defendants did not testify, and there is no affirmative evidence that they did business as a partnership or as individuals in the name of the Tenafly Transportation Company or otherwise. It is noticeable that the company was sometimes called "Tenafly Transportation Company, Incorporated," and sometimes "Tenafly Transportation Company"; but this is unimportant except to show that the three associates were bent upon having their company incorporated and to have it known as a corporation. It was, as already observed, actually incorporated as "Tenafly Transportation Company."

The grounds of appeal, which are the...