Morgenweck v. Egg Harbor City

• Citation: 147 A. 468
• Decision Date: 14 October 1929
• Docket Number: No. 42.,42.
• Parties: MORGENWECK v. EGG HARBOR CITY.
• Court: United States State Supreme Court (New Jersey)

147 A. 468

MORGENWECK

v. EGG HARBOR CITY.

No. 42.

Court of Errors and Appeals of New Jersey.

Oct. 14, 1929.

Appeal from Supreme Court.

Action by Emil P. Morgenweck against the City of Egg Harbor City. Judgment for plaintiff, and defendant appeals. Affirmed.

Thompson & Hanstein, of Atlantic City, for appellant.

William I. Garrison, of Atlantic City, and William C. French, of Camden, for respondent.

KALISCH, J. The defendant appellant appeals from a judgment entered in the Supreme Court on the verdict of a jury, at the Atlantic county circuit court, in favor of the plaintiff below, against the defendant below, for $1,000.

The plaintiff's action, which resulted in the verdict and judgment stated, was founded upon the allegations in plaintiff's complaint, that the defendant, city of Egg Harbor City, was carrying on a business of operating a sewer system as and for a means of revenue, and charging and collecting money for the said service, and in the course of the conduct of such business was operating a truck along a public highway, by its servant, etc., and further, in substance, alleging actionable negligent acts, on part of such servant, resulting in injuries to the complainant.

The first ground relied on, and argued in the brief of counsel of appellant, for a reversal of the judgment, is that the trial judge erred in refusing to dismiss the complaint, because the complaint failed to set forth that the alleged act or acts of negligence, upon which the plaintiff relied for a recovery, was or were committed by or through a servant or servants of the municipality, and which omission was fatal to the validity of the complaint, and because the trial judge allowed the complaint, which was invalid, to be amended, though it appeared the statute of limitation had run, and the plaintiff's action, therefore, was barred.

We find no merit in this contention. The amendment wast properly made. Wilson v. Dairymen's League Cooperative Ass'n, Inc. (N. J. Err. & App.) 143 A. 454. The plaintiffs action was not barred, since it was commenced within two years from the time of the happening of the accident, and the amendment which was allowed was not in legal effect the substitution of a new cause of action, for which no summons had been issued within the time required by law.

Next it is argued that the court erred in refusing to nonsuit, and in refusing to direct a verdict on the ground that there was no proof of negligence. We find no substantial basis to...