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Batts v. Joseph Newman Inc.

Decided: January 23, 1950.

HARRY D. BATTS, PLAINTIFF-RESPONDENT,
v.
JOSEPH NEWMAN, INC., A CORPORATION OF THE STATE OF NEW JERSEY, TIDE WATER ASSOCIATED OIL COMPANY, A CORPORATION, DEFENDANTS-APPELLANTS



On appeal from Superior Court, Appellate Division.

Tidewater Associated Oil Co. case: For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Ackerson. For reversal -- Justices Case and Oliphant. Newman case: For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Wachenfeld and Ackerson. For reversal -- Justices Oliphant and Burling. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

On December 16, 1946, the respondent was standing on the sidewalk beside a parked coal truck on Avenue E in Bayonne. A truck rented to and operated by Joseph Newman, Inc., was being driven by Thomas Tennis, an employee of the Newman Company, along the avenue. As it passed the spot where the respondent stood, a cylindrical tank dropped from it and lay on the street. Several minutes later, a truck coming in the opposite direction swerved toward the curb and avoided the tank but a truck immediately following it struck the tank, propelling it underneath the parked coal truck and onto the sidewalk where it struck the respondent, causing compound, comminuted fractures of both legs. As a result of these injuries, the respondent was hospitalized for more than a year and suffered a considerable degree of permanent disability.

This action was commenced in the Hudson County Court of Common Pleas in January, 1947, by the respondent against

Joseph Newman, Inc., Tennis and Tidewater Associated Oil Company, the latter allegedly the owner and operator of the truck which struck the tank. The owner of the truck rented and operated by the Newman Company was subsequently joined as a party defendant but a nonsuit was granted as to him during the trial and he is not a party to this appeal.

The cause was heard before a jury, which returned a verdict in the sum of $60,000 in favor of the respondent and against the appellants, Joseph Newman, Inc., and Tidewater Associated Oil Company. A verdict of no cause of action in favor of the Newman Company's driver, Tennis, was also returned. Rule for judgment was entered June 23, 1948. On rules to show cause, the respondent, on October 22, 1948, accepted a reduction of the verdict to the sum of $48,000. Notice of appeal to the Superior Court, Appellate Division, was filed on October 23, 1948, by Joseph Newman, Inc., and on November 29, 1948, by Tidewater Associated Oil Company. The Appellate Division affirmed the judgment.

The respondent moves to dismiss the appeals now taken to this court, contending that, since the original appeals were filed subsequent to September 15, 1948, the decision of the Appellate Division is final and no ground exists under the statutes or rules for further appeal. R.S. 2:16-81 provides that an appeal may be taken to the Appellate Division of the Superior Court subsequent to September 15, 1948, from an adjudication made prior to that date "from * * * the Common Pleas Court, of a county." R.S. 2:16-82 provides:

"In any such cause or proceeding, so transferred, the final determination thereof, on appeal, by the Appellate Division of the Superior Court, shall be appealable to the Supreme Court, if an appeal could have been taken to the Court of Errors and Appeals from the former Supreme Court had the Constitution not been adopted."

In the case sub judice, the rule for judgment was entered June 23, 1948. Under the then existing law, these appellants had one year within which to file their appeals. Since a right of appeal to the Court of Errors and Appeals existed under the former practice, the appeals are properly before this court in accordance with the quoted section of

R.S. 2:16-82, supra, as modified by Rule 1:2-5, which requires such appeals to be filed within forty-five days, which was done in this case.

Different grounds for reversal are advanced by each of the two appellants and they will therefore ...


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