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Brandstein v. Ironbound Transportation Co.

Decided: May 4, 1934.

ELIZABETH BRANDSTEIN AND HARRY BRANDSTEIN, PLAINTIFFS-RESPONDENTS,
v.
THE IRONBOUND TRANSPORTATION COMPANY, DEFENDANT-APPELLANT



On appeal from a judgment of the Supreme Court, whose per curiam opinion is printed in 11 N.J. Mis. R. 843.

For the appellant, Maurice J. McKeown and William H. Speer.

For the respondents, Elias G. Willman.

Donges

The opinion of the court was delivered by

DONGES, J. This appeal brings up a judgment of the Supreme Court affirming a judgment of the First District Court of the city of Newark. Plaintiff Elizabeth Brandstein was a passenger in a bus of Public Service Co-ordinated Transport when that bus and a bus of appellant, Ironbound Transportation Company, collided. Suit was brought against the Ironbound Transportation Company, and upon the trial the following question was propounded to Mrs. Brandstein: "And did you receive compensation from the Public Service as the result of the accident?" An objection was interposed by counsel for the plaintiffs and the trial court sustained the objection. Counsel for the appellant excepted to this ruling in the following language: "I take exception, on the ground that the plaintiff has received a substantial sum of money from the Public Service in consideration for signing a covenant not to sue, and I wish to introduce the amount of the

consideration into evidence for the purpose of mitigating the damages as against the defendant herein, on the theory that the plaintiff is not entitled to be doubly compensated for one injury."

The Supreme Court affirmed on the authority of Fast v. Pecan, 11 N.J. Mis. R. 253; 165 A. 281, a Supreme Court decision, which seems to be the only case in point in this state, this court apparently never having passed on the question.

In Fast v. Pecan, the case was decided upon another ground. The Supreme Court, in sustaining the refusal of the trial court to permit testimony of the receipt of money in consideration of the execution by the plaintiff of a covenant not to sue, said:

"The appellant's first point is that the defendant-appellant should have been permitted to introduce testimony that the plaintiff had, for a consideration, executed a covenant not to sue the co-defendant, Edward Melbourne, and testimony as to the amount of such consideration, 'for the purpose of mitigating damages as to the defendant, Max Pecan, in the event that the jury decided that the damages sustained by the plaintiff were the proximate result of the negligence of the defendant, Max Pecan, in the control and operation of his automobile.'

"We find no fault with the ruling. Certainly if the jury found the damages sustained were the proximate result of the negligence of Pecan, he was not entitled to contribution from another. It may be of interest to note that in Public Service v. Matteucci, 105 N.J.L. 114; 143 A. 221, it was held that whenever the damages are the produce of the contributory misfeasance of more than one person, while an action will lie against each of the wrongdoers or against both, neither one can claim contribution from the other so as to distribute the loss equally among themselves, the reason being that the law will not undertake to adjust the burdens of misconduct."

It is settled that, while a person injured may sue one or some or all of the persons liable for the trespass, he can have

but one satisfaction for the injury. We are not dealing with the questions of satisfaction of plaintiffs' claims by a tortfeasor, or of release of one tortfeasor. It is settled in this state that a covenant not to sue one person does not release others liable to the injured party. Bowne v. Mt. Holly National Bank, 45 N.J.L. 360. The question presented here is as to the right of a joint tortfeasor to have a payment in consideration of the execution of a covenant not to sue another joint tortfeasor applied to reduce pro tanto the recovery against the tortfeasor sued.

It must be conceded that the authorities upon this subject are not harmonious. The weight of authority, and the authorities which we regard as declaring the sound rule, hold that when suit is brought against one joint wrongdoer, the amount received for the execution of a covenant not to sue another joint wrongdoer is to be credited on any liability which may be found to exist against the one sued.

Such is the holding in Sloan v. Herrick (1877), 49 Vt. 327; Knapp v. Roche (1884), 94 N.Y. 329; Finlay v. Planter et al. (Sup. Ct., R.I., 1932), 160 A. 865; Balick v. Philadelphia Dairy Products Co., Inc. (Superior ...


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