Molnar v. Hildebrecht Ice Cream Co.

• Decision Date: 31 January 1933
• Docket Number: No. 71.,71.
• Citation: 164 A. 300
• Parties: MOLNAR et al. v. HILDEBRECHT ICE CREAM CO. et al.
• Court: New Jersey Supreme Court

164 A. 300

MOLNAR et al.

v. HILDEBRECHT ICE CREAM CO. et al.

No. 71.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1933.

Appeal from Supreme Court.

Consolidated actions by George Molnar, an infant, Andrew Molnar, Yustina Rosinski, administratrix ad pros., John Brovak, an infant, Michael Brovak, Anna Hage, Doris Cook, an infant, Mary Cook, Edna O'Shea, an infant, and Mary O'Shea, respectively, against the Hildebrecht Ice Cream Company and another. Judgments for plaintiffs, and defendants appeal.

Affirmed.

James J. McGoogan, of Trenton, for appellants.

Harry Heher and Martin P. Devlin & Son, all of Trenton, for respondents.

BROGAN, J.

The instant case brings to this court an appeal from ten judgments for plaintiffs recovered in the Supreme Court circuit of Mercer county. Three of the cases had been brought in the Supreme Court, Mercer circuit, and three in the Mercer county circuit court. Five suits were for personal injuries and one for death, brought by an administratrix ad prosequendum under the Death Act (2 Comp. St. 1910, pp. 1907, 1911, §§ 7, 9 and Comp. St. Supp. §§ 55—8, 55—10). The six cases were then consolidated and the following verdicts obtained by the several plaintiffs.

(a) (1) George Molnar, an infant, personal injuries, verdict ..................

$2,500.00

(2) Andrew Molnar, father, loss of services, etc....

$250.00

(b) (3) Yustina Rosinski, admrx. ad pros., verdict.......

$12,500.00

(c) (4) John Brovak, an infant, personal injuries, verdict ..............

$500.00

(5) Michael Brovak, father, loss of services, etc....

$100.00

(d) (6) Anna Hage, personal injuries ..............

$2,500.00

(e) (7) Doris Cook, an infant, personal injuries......

$2,500.00

(8) Mary Cook, her mother, loss of services, etc.....

$250.00

(f) (9) Edna O'Shea, an infant, personal injuries......

$2,500.00

(10) Mary O'Shea, her mother, loss of services, etc......

$250.00

A rule to show cause was obtained in each case and discharge by the trial court, after argument, except in that of Yustina Rosinski, administratrix, ad pros., where the trial court reduced the verdict to $8,500, which sum that plaintiff accepted.

The claims of these parties arose out of the following happenings, and under these circumstances: On August 2, 1929, the defendant Hildebrecht Ice Cream Company was in control of the operation of an automobile truck, loaded with ice cream, at the southeast corner of Lamberton and Cass streets, a public highway in the city of Trenton, N. J., and it appears that the driver, in order to avoid striking an automobile moving easterly to this intersection, made a sharp left-hand turn, which resulted in the truck being overturned near the said southeast corner, where it lay for perhaps half an hour before the happenings complained of occurred. During this half hour interval, Tyler, the foreman of the Hildebrecht Ice Cream Company's Maintenance Department, summoned Charles H. Sutorius, trading as the Tex Wrecking Service, the other defendant here, who was in the business of removing disabled automobiles, and who, shortly thereafter, arrived with his automobile truck and apparatus and set to work at righting the truck and removing it from the highway.

There was evidence in the case that Sutorius and Tyler together applied themselves to the task of removing the truck; that they first placed hooks upon parts of the truck which were affixed to cables, which, in turn, were attached to a winding drum, which was part of the apparatus of the wrecker. The first effort to raise the truck was unsuccessful, and there was testimony that on this first attempt it was raised perhaps twelve inches from the ground, then was lowered again, settling with a jar, followed by a rush of black smoke almost immediately and then flames. Now, prior to this, gasoline had leaked from the tank of the overturned truck onto the street. The truck driver had been dispatched by Tyler, the foreman, to get a policeman to the scene, and, during his absence, the gasoline on the roadway flared up, and the six persons were burned, one of whom died from his injuries. Suit was brought by or on behalf of all these persons against the Hildebrecht Ice Cream Company and Sutorius jointly and verdicts for plaintiffs obtained.

Preliminary to considering the grounds for reversal, certain questions must be settled. The reasons assigned on rule to show cause in each case obtained on behalf of Hildebrecht were: (1) That the verdicts were excessive; (2) that the verdicts were contrary to the charge of the court, reserving for appeal (a) that the plaintiffs should have been nonsuited; (b) that there should have been a direction of verdict in favor of the defendant; and (3) testimony which was objected to was admitted by the trial court.

On the rules to show cause obtained in behalf of the other defendant, Sutorius, or Tex Wrecking Service, the reasons filed in support of the rule were: (1) Verdicts were excessive; (2) verdicts were contrary to the charge of the court; and (3) verdicts were against the weight of the evidence. The legal questions reserved by this defendant were: (a) Plaintiffs should have been nonsuited on the opening made by counsel; (b) plaintiffs should have been nonsuited at end of their case; (c) defendant should have had a direction of verdict in its favor at the end of the whole case; and (d) admission of testimony by trial court over objection.

These several points set out in connection with the rules to show cause, and the questions reserved for appeal become important in the light of the argument made in this court by counsel for the respondents who argue as follows: Since the reasons filed, upon which motion for a new trial is rested, include the point that the verdict is contrary to the weight of evidence, and, after hearing, the court discharges the rule, the defendants estop themselves from arguing the questions of nonsuit or direction of verdict on appeal, even though same are reserved. In support of this contention, counsel relies upon Holler v. Ross, 67 N. J. Law, 60, 50 A. 342, and Cleaves v. Yeskel, 104 N. J. Law, 497, 141 A. 814. Counsel urges, in a word, that the questions are res adjudicata. That would be sound were it not for the fact that the second reason, namely, that the verdict was contrary to the charge of the court in the Hildebrecht Case, and the same reason with the additional one that the verdict was against the weight of the evidence in the Sutorius Case, were, by order of the trial court and on application by counsel for each defendant below, exscinded from the reasons filed by such counsel for setting aside these verdicts. In other words, they were set up at first but expressly not considered or adjudicated on the argument of these several rules to show cause, only one ground having been argued (i. e., amount of verdict) and adjudicated, with the result mentioned above.

It is of course obvious that the theory and conduct of counsel in arguing a rule to show cause, and latterly an appeal to a higher tribunal, must be consistent. If it be argued in support of a rule to show cause that the jury's finding was contrary to the charge of the court, it is a postulate of that statement that the charge to the jury, had it been followed by the jury, would have resulted differently. This is another way of saying that the charge to the jury was without fault as a matter of law. It is equally obvious that the court is in control of the rule to show cause allowed and the reasons that are filed to this extent that it may state on the record by order or rule that certain of the reasons filed have not been urged and are withdrawn from consideration, and that the filed reasons may be amended by rule or order to that extent. These reasons, therefore (a) that the verdict was contrary to the charge of the court, and (b) against the weight of the evidence, having been withdrawn from the consideration of the trial court and with the court's consent, are not res adjudicata.

The reasons for reversal filed by these two appellants are quite similar. The appellant Hildebrecht Ice Cream Company urges that it was error that a judgment should be given in favor of the plaintiffs below and against the defendant; that no negligence on the part of the Hildebrecht Company was shown, while respondents were guilty of contributory negligence; that there should have been a direction of verdict in favor of the defendant Hildebrecht Company, because no negligence was proven, and the plaintiffs below were guilty of contributory negligence, and that the Hildebrecht Company employed the codefendant, Tex Wrecking service, as an independent contractor to lift the truck in question, and, if the upsetting of this truck on the highway was due to Hildebrecht Company's negligence in the first instance, and there was negligence on the part of the Tex Wrecking Service in attempting to raise the truck, these two, as defendants, were improperly joined.

Four other reasons for reversal, which attack the court's charge to the jury, are perforce abandoned because they were not reserved on the argument of the rules to show cause. Two additional reasons are urged for the Hildebrecht Company; that the court disallowed defendant's demand for particulars; that the court admitted, over objection, certain evidence of an expert witness.

The reasons for reversal assigned on behalf of the Tex Wrecking Service are in the main identical with those of the codefendant, and, as we view this case, the legal disposition of the ground for reversal in the one case is equally dispositive of the same ground in the other.

Certain grounds of appeal for the defendant Sutorius, which complain of error in the court's charge, will not be considered here, because they, too, were not reserved in the rule to show cause, obtained and argued on his behalf, nor will the reason for reversal, that the...