Owens v. Cerullo, 80.

• Decision Date: 02 July 1931
• Docket Number: No. 80.,80.
• Citation: 155 A. 759
• Parties: OWENS v. CERULLO et al.
• Court: New Jersey Supreme Court

155 A. 759

OWENS

v. CERULLO et al.

No. 80.

Supreme Court of New Jersey.

July 2, 1931.

Action by John Owens against Arthur Cerullo, Richard New, Max Sollonek, Sr., and Max Sollonek, Jr. On rules by the last three named defendants to show cause why verdict against them should not be set aside.

Rules discharged.

Argued January term, 1931, before GUMMERE, C. J., and TRENCHARD and LLOYD, JJ.

David T. Wilentz, of Perth Amboy, for plaintiff.

Kalisch & Kalisch, of Newark, for defendant Arthur Cerullo.

Louis Auerbacher, Jr., of Newark, for defendant Max Sollonek, Sr.

Edmond J. Dwyer, of Newark (Louis Auerbacher, Jr., of Newark, of counsel), for defendant Max Sollonek, Jr.

Irving W. Teeple, of Newark, for defendant Richard New.

PER CURIAM.

This action was instituted by the plaintiff to recover damages for injuries and loss sustained as a result of the alleged negligence of the defendants. The trial resulted in a general verdict against the defendants Richard New, Max Sollonek, Sr., and Max Sollonek, Jr., for $15,000, and a verdict of no cause of action in favor of defendant Arthur Cerullo. Each defendant against whom the verdict went obtained a rule to show cause why the verdict should not be set aside.

The testimony produced by the plaintiff at the trial tended to show the following matters of fact:

On November 7, 1929, at 7:45 p. m., the plaintiff was a passenger in an Oakland roadster driven by his son, and will hereafter be referred to as the "Owens" car. The Owens car was going north on the State Highway leading to Keyport, at from 20 to 25 miles an hour, and on its right-hand side of the road, which at the point of the accident was straightaway and was wide enough to accommodate three or four automobiles. The automobiles of the defendants Richard New and Arthur Cerullo were both going south towards Red Bank. The automobile of New attempted to pass the automobile of Cerullo, and in doing so crashed into the Owens car and threw the plaintiff Owens out of the car on to the highway. The car driven by Cerullo then collided with the Owens car. Immediately thereafter an automobile owned by Max Sollonek, Sr., and driven by his son, Max Sollonek, Jr., ran over the body of Owens while he was lying on the highway, and it, too, crashed into the Owens roadster, sending it a distance of 30 feet.

Such, we believe, after a consideration of the plaintiff's evidence, and of the somewhat conflicting testimony produced by the defendants, was the situation as the jury was amply justified in finding it to be.

The first point made by defendants Solloneks and New is in effect that the verdict does not conform to the charge of the court and the pleadings and is not in accord with the testimony adduced at the trial, and that the trial judge improperly charged the jury.

We think that the pleadings and the complaint, which is separated into counts to avoid duplicity, show clearly that the defendants are charged with each proximately contributing to the Injury complained of by the plaintiff, and amply justify the admission of plaintiff's testimony at the trial, and also amply justify the charge of the court, to which no exception was taken by the defendants holding the rule.

The plaintiff predicated his right to recovery against all of the defendants on the theory that joint feasors each owing a separate duty to another, and each wrongfully neglects to perform it, though acting without concert, if such several neglects concurred in producing the injury, the tort is joint and the tort-feasors are subject to a like liability. Matthews v. D., L. & W. R. R. Co., 56 N. J. Law, 34, 27 A. 919, 22 L. R. A. 261.

These defendants say that the verdict was contrary to the weight of the evidence. Without here reciting all of the testimony as to the happening of the accident, we...