Loughney v. Thomas

• Decision Date: 02 October 1936
• Docket Number: No. 35.,35.
• Citation: 187 A. 329
• Parties: LOUGHNEY v. THOMAS et al.
• Court: New Jersey Supreme Court

187 A. 329

LOUGHNEY

v. THOMAS et al.

No. 35.

Court of Errors and Appeals of New Jersey.

Oct. 2, 1936.

Syllabus by the Court.

1. Where there are proofs from which a jury may reasonably find an asserted fact, it is error to nonsuit or direct a verdict.

2. Objection to a party plaintiff, because of improper or unauthorized appointment as administrator ad prosequendum, must be made promptly.

Appeal from Supreme Court, Morris County.

Action by Bridget Loughney, administratrix ad prosequendum of the estate of Edward B. Loughney, deceased, against Harry Thomas and another, individually, and John Thomas and another, partners trading as Thomas Bros., and others. Judgment for defendants, and Thrasilla Loughney, as substituted administratrix ad prosequendum of the estate of Edward B. Loughney, deceased, appeals.

Reversed in pirt and venire de novo awarded.

E. A. Merrill, of Westfield, for appellant.

Charles S. Gray, of Newark (Harold A. Price, of Morristown, of counsel), for respondents.

CAMPBELL, Chancellor.

A very brief recital of the facts is all that is necessary. A motortruck registered in the name of the defendant Harry Thomas, of Wilkes Barre, Pa., as owner, bearing the inscription "Thomas Brothers" and operated by the defendant John J. Thomas, crashed into the rear end of another motortruck owned by Virginia M. Yanavok which was parked on the side of the state highway, route 6, near Belvidere, in Warren county. This truck was operated by, and was in the control of, one Rolph, who, at the time, was in the employ of John Yanavok and engaged in and about the business of the latter.

Edward B. Loughney, plaintiff-appellant's decedent, a resident of Wilkes Barre, who was seated beside John Thomas in the cab of the Thomas truck, died as the result of injuries received in the collision.

Bridget Loughney, the mother of Edward B. Loughney caused letters of administration ad prosequendum to be issued to her by the surrogate of Morris county, and in such capacity brought suit under the Death Act (2 Comp.St.1910, pp. 1907, 1911, §§ 7, 9; Comp.St.Supp.1924, §§ 55—8, 55— 10) against Virginia M. Yanavok, John Yanavok, Rudolph Rolph, Harry J. Thomas and John Thomas, individually, and John Thomas, Harry J. Thomas, and Joseph Thomas, partners trading as Thomas Bros. The action was brought in the Supreme Court and the venue laid in Morris county (the defendants Yanavok and Rolph being residents of that county), and the cause was tried at the Morris circuit.

The trial court directed a verdict against the plaintiff and in favor of the defendants Harry J. Thomas and John Thomas, as individuals, and they and Joseph Thomas as Thomas Bros., and also in favor of Virginia M. Yanavok, and submitted the cause to the jury as to John Yanavok and Rudolph Rolph, as to whom that body returned a favorable verdict of no cause of action.

From the judgment, upon the directed verdict, in favor of the defendants Thomas and Thomas Bros., the plaintiff below appeals.

Since the trial of the cause, Bridget Loughney, the original plaintiff, has died, and the present appellant has been appointed by the surrogate of Morris county as administratrix ad prosequendum of Edward B. Loughney, deceased, and as such has taken and prosecuted this appeal.

There seems to be but three questions raised. The first is that the trial court erred in directing a verdict in favor of John Thomas, individually, the driver of the Thomas car.

This judicial action appears to have been based upon the conclusion of the trial court that the second count of the complaint did not charge John Thomas, individually, to respond because of negligence, but we do not reach that conclusion.

It is true that paragraphs 5 and 6 of this count assert that John Thomas, "the agent, servant or employee of said Harry J. Thomas * * * carelessly, recklessly and negligently operated said truck," etc., but paragraph 8 thereof concludes as follows: "Each of whom has sustained a pecuniary damage because of the death of plaintiff's intestate * * * as the result of the negligence of the defendants, Harry J. Thomas and John Thomas, as aforesaid," and, further, they were named individually in the summons, so served, and so answered.

We conclude that it was error to direct a verdict in favor of John Thomas, individually, and we can find no factual or legal reason for such a direction in favor of Harry J. Thomas, individually.

The second ground for reversal is that the trial court erred in directing a verdict in favor of John Thomas, Harry J. Thomas, and Joseph Thomas, as partners trading as Thomas Bros.

This action was erroneous. There were proofs from which such a relationship and control of the truck in question could have been found, and those facts should have been referred to the jury for settlement.

The third ground presented is that the appeal should be dismissed, as the appellant has no standing, inasmuch as she obtained her letters of administration from the surrogate of Morris county instead of the surrogate of Warren county, where the happening took place.

This, of course, is not raised by any ground of appeal because the trial court did not direct the verdict complained of on this ground. However, this was a reason urged for a direction of the verdict, and, if good, although the other grounds upon which the direction was based were without legal substance, still the action of the trial court will not be reversed. Breintnall v. Sadler, 82 N.J.Law, 405, 409, 81 A. 819; McCarty v. West Hoboken, 93 N.J. Law, 247, 248, 107 A. 265; Healey v. Braested, 98 N.J.Law, 520, 522, 120 A. 12. But we think there was nothing in this direction, prejudicing the respondents.

Originally such...