Kelley v. Curtiss, No. A--8

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: BRENNAN, Jr.
• Citation: 108 A.2d 431,16 N.J. 265
• Parties: Gladys KELLEY and Lawrence Kelley, her husband, Plaintiffs-Respondents, v. John CURTISS, Defendant, and The City of Newark, a municipal corporation of the State of New Jersey, Defendant-Appellant.
• Docket Number: No. A--8
• Decision Date: 11 October 1954

Page 265

16 N.J. 265 108 A.2d 431 Gladys KELLEY and Lawrence Kelley, her husband, Plaintiffs-Respondents,
v.
John CURTISS, Defendant, and
The City of Newark, a municipal corporation of the State of
New Jersey, Defendant-Appellant. No. A--8. Supreme Court of New Jersey. Argued Sept. 13, 1954.
Decided Oct. 11, 1954.

Page 268

[108 A.2d 433] Vincent P. Torppey, Newark, argued the cause for appellant (Horace S. Belfatto, Newark, attorney).

John A. Laird, Newark, argued the cause for respondents (Greenstone & Greenstone, Newark, attorneys).

The opinion of the court was delivered by

BRENNAN, Jr., J.

At the trial an involuntary dismissal was granted defendant City of Newark at the end of plaintiffs' case, and the jury returned a verdict of no cause for action in favor of the city's employee, the defendant Curtiss, a mounted police officer. Plaintiffs, husband and wife, sought damages for injuries sustained when the horse assigned to Curtiss for mounted police duty, while tethered unattended where Curtiss had left it in a driveway

Page 269

leading to a parking lot, kicked Mrs. Kelley as she walked away after feeding the horse sugar or candy.

Plaintiffs appealed the judgments in favor of both defendants to the Appellate Division, but abandoned the appeal as to Curtiss, and limited the appeal from the judgment for the city to the single question whether plaintiffs' proofs to show active wrongdoing participated in by the city sufficed to withstand an involuntary dismissal in the city's favor. The Appellate Division found that the proofs were sufficient to present a jury question as to that issue and, in an opinion by Judge Clapp comprehensively discussing the principles of the liability of a municipality for torts, reversed and remanded for a new trial against the city, 29 N.J.Super. 291, 102 A.2d 471 (1954). The city sought certification, which we granted, 15 N.J. 381, 104 A.2d 733 (1954).

Both the city's petition for certification and its brlief urge a proposition not advanced in the Appellate Division, namely, that at all events the final judgment upon the verdict in favor of the employee Curtiss is a complete bar to plaintiffs' further prosecution of the action against Curtiss' employer, the city.

We do not think that the city's failure to advance this proposition in the Appellate Division should deter us from considering and deciding it in the circumstances of this case. The asserted bar of the Curtiss judgment is a plea of Res judicata, an affirmative defense, to be pleaded as such, R.R. 4:8--3, Bango v. Ward, 12 N.J. 415, 97 A.2d 147 (1953), although it may also be raised by motion and affidavit, Kelleher v. Lozzi, 7 N.J. 17, 25, 80 A.2d 196 (1951). We may assume that if plaintiffs had followed through with their appeal and had brought the Curtiss judgment before the Appellate Division, the record would have sufficed to permit, if not to require, the city to argue the alleged bar of the judgment, see McKnight v. Cassady, 113 N.J.L. 565, 174 A. 865 (E. & A. 1934). But that was not the case, and therefore, the judgment being an after-occurring event under R.R. 4:15--4, proceedings by the city to supplement the record were requisite to frame the issue. The city made no effort in the Appellate Division to

Page 270

invoke the original [108 A.2d 434] jurisdiction of that court to supplement the record, and, while presenting the question in its petition for certification and brief in this court, has made no formal application to us to do so. However, though we assume, while we doubt, the application in the circumstances of this case of the rule of appellate practice that an appellant will not be heard to urge here a point not raised in the Appellate Division, see State v. Shiren, 9 N.J. 445, 455, 88 A.2d 601 (1952), R.R. 1:7--1(c) and R.R. 1:7--4(c) (made applicable to the Appellate Division by R.R. 2:7--1), the waiver which is the predicate of that rule is of the city's right to be heard here on the point and would not estop the city, upon...