On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Ackerson. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.
These appeals are from judgments entered in favor of the plaintiffs against the defendant in the Law Division of the Superior Court, Camden County. While they were pending in the Appellate Division they were certified by this court on its own motion.
The gravamen of the actions, which were consolidated for the purpose of trial, was the negligent operation of an automobile station wagon owned by the defendant, and they have an unique and unfortunate background. The accident occurred on June 19, 1935, the complaints were filed on November 27th of that year. This is the fifth trial of the issues, the first of which was held in June, 1936, and in which the jury disagreed. The second trial, in October, 1936, again resulted in a disagreement. The third trial in November, 1937, and the fourth in May, 1944, resulted in verdicts for the plaintiffs which were set aside by the trial judges. The verdicts returned in the cases sub judice must again be set aside. In this State there is no statute or rule established by decisions limiting the number of times a verdict may be set aside for error.
During the fourteen years of litigation parties, witnesses and judges have died. While, by stipulation, the testimony of deceased witnesses at previous trials was preserved and made admissible in subsequent trials, at each succeeding one the events and circumstances surrounding the accident became more remote, witnesses' memories naturally faded, the opportunity for full cross-examination became curtailed and the chances of a just decision became correspondingly reduced.
On the day of the accident one Rose, an employee of the defendant, parked its station wagon in front of the Wiley
Mission at Arch and Third Streets in Camden and went inside. He left the keys in the car and there is evidence the motor was idling. While Rose was in the Mission one Joslin, admittedly drunk, got in the station wagon. Shortly thereafter the automobile was driven from where it had been parked diagonally across the street where it became entangled with a heavy "No Parking" sign which weighed from fifty to seventy-five pounds and was embedded in a concrete base. With this sign entangled with the front bumper the station wagon was backed away from the curb in such a violent manner the sign was shaken loose and the station wagon was then driven forward at a high rate of speed zigzagging and swerving from side to side. It made a violent swerve, crossed the street, climbed the curb and struck Mr. Mead and Mr. Kemble, who were on the sidewalk. It then continued in an erratic, highly reckless course until it struck another car.
Plaintiffs claim Rose operated the car, having entered it and climbed over Joslin who was lying on the front seat, while defendant asserts Joslin in effect stole the car, was its driver on the wild ride, and that Rose did not emerge from the building until after the accident.
The pretrial order, filed November 19, 1948, set forth that Mr. Mead died April 15, 1940, and that William L. Mead has been substituted as party plaintiff; that no claim is made that Mr. Mead's death was the result of the injuries received in the accident; that Anna Belle Kemble, executrix, was the widow of Mr. Kemble, who was killed in the accident and that Anna Belle Kemble died and the substituting executor will be made a party plaintiff in her stead. There then followed this significant and important paragraph "The only issue in the case, outside of the question of damages is whether or not the operator of the defendant's station wagon was an agent, servant or employee of the defendant. Plaintiffs contend that he was and the defendant contends that the vehicle was taken by one Joslin without the authority or knowledge of the defendant." A further paragraph of the order reads "There will be no question about the negligence, proximate cause or contributory negligence."
Not only was the question of whether Rose or Joslin was driving the station wagon the single issue to be submitted to the jury under the pretrial order, but both counsel for the plaintiffs and for the defendant in their openings to the jury stressed the fact that this was the only issue. They again did this in the briefs submitted to us and the arguments made here.
Notwithstanding all this the trial court in its charge to the jury submitted other extraneous issues for its consideration. It ...