Malinauskas v. Public Service Interstate Transp. Co.

• Decision Date: 22 January 1951
• Docket Number: No. A--67,A--67
• Citation: 78 A.2d 268,6 N.J. 269
• Parties: MALINAUSKAS et al. v. PUBLIC SERVICE INTERSTATE TRANSP. CO. et al.
• Court: New Jersey Supreme Court

Page 269

6 N.J. 269

78 A.2d 268

MALINAUSKAS et al. v. PUBLIC SERVICE INTERSTATE TRANSP. CO. et al.

No. A--67.

Supreme Court of New Jersey.

Argued Jan. 2, 1951.

Decided Jan. 22, 1951.

Horace G. Brown, Camden, argued the cause for the appellants.

Carl T. Freggens, Newark, argued the cause for the respondents (Herman H. Wille, Jr., Newark, on the brief).

The opinion of the court was delivered by

ACKERSON, J.

We are concerned here with two actions in tort arising from a collision between a bus of the Public Service Interstate Transportation Company (hereinafter referred to as 'Public Service'), driven by its employee, William A. Slimm, Sr., in which Anna Malinauskas was a passenger and an automobile owned and operated by Frank J. Marsero in which his wife Dorothy was a passenger. For the injuries and losses resulting from this occurrence, Anna Malinauskas and her husband Joseph brought an action in the Superior Court, Law Division, against Public Service, its driver Slimm, and Frank J. Marsero. An action was also brought in the same court by Marsero and his wife against the Public Service.

Since the two actions arose out of the same occurrence and involved the same issues of fact and law, they were consolidated for the purpose of trial. At the conclusion thereof, the jury returned a verdict which was announced by the forelady as follows: 'We, the jury, find Public Service Interstate Transportation Company and the driver Mr. Slimm guilty of negligence and award the sums of: Mr. Malinauskas, $1,500.00; Mrs. Malinauskas, $6,000.00; Mr. Marsero, $750.00; and Mrs. Marsero, $1,000.00.' (8 N.J.Super. 268, 74 A.2d 329.) The clerk repeated the verdicts and then asked: 'Is that a unanimous verdict?' The forelady replied: 'No'. The jury was then polled and it was apparent therefrom that they were unanimous in finding Public Service and its driver guilty of negligence but four of them considered that Frank J. Marsero also was guilty of negligence.

The trial judge thereupon directed the recording of the verdict as announced in favor of Anna Malinauskas, Joseph Malinauskas and Dorothy Marsero and then instructed the jury that there had to be at least ten jurors (L.1948, ch. 120, sec. 1, p. 831; N.J.S.A. 2:27--233.1) who found that Frank J. Marsero was not guilty of negligence before a verdict in his favor could be recorded, and directed them to '* * * retire to consider further the cause of action of Mr. Marsero v. Public Service.'

The jury again retired and at this point counsel for Public Service and Slimm took an exception to the entry of the judgment in favor of Mr. and Mrs. Malinauskas on the sole ground that '* * * if the jury find on their return that Mr. Marsero is guilty of negligence they should also be given the opportunity of assessing damages against that party.'

When the jury again returned they reported by a ten to two vote the following verdict: 'We find the Public Service Transportation and Mr. Slimm guilty of negligence and award the sum of $750 to Mr. Marsero.' The clerk of the court then repeated all of the verdicts in full as follows: 'Members of the jury harken to your verdict, as the Court has ordered it recorded: You find in favor of plaintiff Anna Malinauskas, $6,000.00, and for plaintiff Joseph Malinauskas, $1,500.00, and assess said sums against defendant, Public Service Interstate Transportation Company and defendant William A. Slimm, Sr. You find in favor of the plaintiff, Dorothy Marsero, in the sum of $1,000.00, and for the plaintiff, Frank Marsero, in the sum of $750.00, and assess those sums against the defendant, Public Service Interstate Transportation Company and defendant William A. Slimm, Sr., and the latter verdict is 10 for and 2 against.'

There was no objection to the final verdicts as thus repeated by the clerk and they were in fact the only verdicts actually recorded and incorporated in the resulting judgments.

Public Service and Slimm then appealed both cases to the Appellate Division, which affirmed the judgment recovered against them by Frank and Dorothy Marsero but reversed that obtained by Joseph and Anna Malinauskas on the ground presently to be considered. It is the latter determination which is now before us for review pursuant to certification granted on the application of the last named plaintiffs. The bus company and its driver have not sought certification of the judgment in favor of Mr. and Mrs. Marsero.

The basis for the reversal of the judgment in favor of the plaintiffs Mr. and Mrs. Malinauskas is best expressed by the following excerpt from the opinion below: 'When the verdicts for Anna and Joseph Malinauskas against the Public Service and Slimm were (first) returned, the poll disclosed that all twelve jurors found the Public Service and Slimm negligent but four jurors also found Frank Marsero negligent, the effect of which was that eight jurors agreed to the verdicts for Anna and Joseph as returned but four jurors were in favor of different verdicts namely, verdicts against all three defendants. Since less than ten jurors agreed to the verdicts for Anna and Joseph Malinauskas as returned, it was error to receive and record them.'

Therefore the dispositive question presented by this appeal is whether or not the trial court committed reversible error in accepting and recording the verdicts in favor of these appellants and against the Public Service and Slimm under the circumstances hereinabove related.

Under well settled principles, where there are two or more joint tortfeasors, an action may be instituted against any one or more of them and, if against several, one defendant alone may be held liable if the proofs justify it regardless of the finding as to the others, and if several are found liable there is no right of contribution and the jury may not apportion the damages among them. Matthews v. Delaware, L. & W.R.R. Co., 56 N.J.L. 34, 27 A. 919, 22 L.R.A. 261 (Sup.Ct.1893); Rose v. Squires, 101 N.J.L. 438, 128 A. 880 (Sup.Ct.1925), affirmed 102 N.J.L. 449, 133 A. 488 (E. & A.1925); Manowitz v. Kanov, 107 N.J.L. 523, 525, 154 A. 326, 75 A.L.R. 1464 (E. & A.1930); Vadurro v. Yellow Cab Co., 6 N.J. 102, 77 A.2d 459 (1950); Public Service Ry. Co. v. Matteucci, 105 N.J.L. 114, 143 A. 221 (E. & A.1928); Ross v. Pennsylvania R.R. Co., 138 A. 383, 5 N.J.Misc. 811 (Sup.Ct.1927). Thus Joseph and Anna Malinauskas could have brought their action against Public Service alone and upon a proper showing could have recovered their damages against it regardless of whether or not Marsero, driver of the other car, was guilty of concurring negligence. Instead these plaintiffs brought their action against Public Service, Slimm and Frank Marsero by filing a complaint in which there were several separate...