Smith v. Fischer Baking Co.

Decision Date14 October 1929
Docket NumberNo. 118.,118.
Citation147 A. 455
PartiesSMITH v. FISCHER BAKING CO. et al.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Mary E. Smith against the Fischer Baking Company and another jointly and in the alternative. Judgment for plaintiff, and defendants appeal. Affirmed.

Raymond E. Taylor and William E. Holmwood, both of Newark, for appellants.

Lum, Tamblyn & Colyer, of Newark (William A. Wachenfeld, of Newark, of counsel), for respondent.

TRENCHARD, J. The plaintiff-respondent brought this suit to recover for damage to her automobile caused in a collision between her automobile and the automobile owned by the defendant-appellant, Fischer Baking Company, and recovered a verdict against such defendant.

The plaintiffs' automobile was operated at the time of the accident by her servant, George E. Versoy. Prior to the trial of this suit Versoy brought an action in the second district court of Newark against the defendant Fischer Baking Company to recover damages on account of personal injuries sustained by him in the same accident.

One of the defenses raised by the defendant Fischer Baking Company in the present action was the defense of res adjudicata, and the judgment record of the district court in the case of George E. Versoy v. Fischer Baking Co., showing a judgment for the defendant, was offered in evidence and was excluded.

We now deal with the sole ground of appeal.

We think that the trial judge properly refused to receive in evidence that judgment record.

As we have pointed out, the action being tried when the judgment record was offered in evidence was brought by Mary E. Smith against the defendant to recover for the damage done to the motor vehicle owned by her.

The action formerly tried before the district court, as shown by the judgment record, which was marked for identification and excluded, was by the servant of Mary E. Smith for personal injuries alleged to have been sustained by him in the same collision.

Now it is settled in this state that these two actions are not one and the same, but are separate and distinct. Ochs v. Public Service Railway Co., 81 N. J. Law, 661, 80 A. 495, 496, 36 L. R. A. (N. S.) 240. We quote from the opinion at page 663 of 81 N. J. Law, 80 A. 496: "We are of opinion that, where injury is caused to property and person by the same negligent act, distinct causes of action exist, and therefore a judgment in one cause is not a bar to an action to recover in the other."

If the judgment record of the district court which was offered in evidence was material at all, it could have been material only to support the defense of res adjudicata.

But a matter is not res adjudicata unless there be identity of the thing sued for, of the cause of action, of the persons and parties, of the quality of the persons for and against whom the claim is made, and the judgment in the former suit be so in point as to control the issue in the pending action. To render a prior judgment res adjudicata the record must show that the issue was taken on the same allegations which are the foundation of the second action. The test is whether the proof which would fully support the one case would have the same effect in tending to maintain the other. Hoffmeier & Son v. Trost, 83 N. J. Law, 358, 85 A. 221; Mershon v. Williams, 63 N. J. Law, 398, 44 A. 211.

In Gardner v. Raisbeck, 28 N. J. Eq. 71 at page 75, the...

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15 cases
  • Burrell v. Quaranta
    • United States
    • New Jersey Superior Court — Appellate Division
    • September 4, 1992
    ...v. Heimert, 108 N.J.L. 59, 154 A. 609 (Sup.Ct.1931), aff'd o.b., 109 N.J.L. 265, 160 A. 635 (E. & A.1932); Smith v. Fischer Baking Co., 105 N.J.L. 567, 147 A. 455 (E. & A.1929); Ochs v. Public Service Railway Co., 81 N.J.L. 661, 80 A. 495 (E. & A.1911). See also Smith v. Red Top Taxicab Cor......
  • Williams v. Ocean Transport Lines, Inc.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 24, 1970
    ...collateral estoppel in favor of an employer on the amount of damages found in a case against an employee. Smith v. Fischer Baking Co., 105 N.J.L. 567, 147 A. 455 (E. & A. 1929), declined to invoke, against an employer, the preclusionary force of a judgment against her employee. Since the ra......
  • Reardon v. Allen
    • United States
    • New Jersey Superior Court
    • July 2, 1965
    ...subrogee's property damage action he could not use that judgment to preclude plaintiffs in this action. See Smith v. Fischer Baking Co., 105 N.J.L. 567, 147 A. 455 (E. & A.1929), holding the vehicle owner's property damage claim is not barred by an adverse judgment in the personal injury ac......
  • Templeton v. Scudder
    • United States
    • New Jersey Superior Court — Appellate Division
    • December 11, 1951
    ...which would fully support the one case would have the same effect in tending to maintain the other.' Smith v. Fischer Baking Co., 105 N.J.L. 567, 568, 147 A. 455, 456 (E. & A.1929); Mershon v. Williams, 63 N.J.L. 398, 44 A. 211 Hoffmeier & Son v. Trost, 83 N.J.L. 358, 85 A. 221 (Sup.Ct.1912......
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