For reversal -- Justices Case, Heher, Oliphant and Burling. For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld and Ackerson. The opinion of the court was delivered by Oliphant, J. Heher, J. (concurring). Vanderbilt, C.J. (dissenting). I am authorized by Mr. Justice Wachenfeld and Mr. Justice Ackerson to state that they join in this dissent.
[6 NJ Page 263] These defendants-appellants, together with the Fischer Baking Company, Hans Schirber and George Settle, were charged jointly and in separate counts with negligence which proximately caused the death of plaintiff's intestate.
As a result of a trial in the Superior Court, Law Division, Morris County, a verdict of no cause of action was entered as against Settle and of $100,000 against the remaining defendants. On motion made to the trial court this was reduced to $85,450 and judgments for that amount were accordingly entered.
An appeal was taken to the Appellate Division by all of the defendants and the judgments were there reversed as to all of them because of the admission of certain testimony which was held to be harmful and prejudicial error as to the defendants Fischer Baking Company and Schirber. 6 N.J. Super. 107 (1950).
On petition a reargument was had and in a later opinion, 7 N.J. Super. 253 (1950), the previous opinion was modified, the holding being that the cause of action against the various defendants was separable and that the judgments entered in the trial court should be reversed as to the Fischer Baking Company and Schirber only. It accordingly ordered the judgments affirmed as entered against the Central Greyhound Lines, Inc., and Heasley and a new trial on the issue of liability as to the Fischer Baking Company and Schirber.
Both the plaintiff and these defendants, Central Greyhound Lines, Inc., and Heasley, sought certification to review the determination of the Appellate Division and their petitions were granted.
By an opinion rendered in 6 N.J. 254, wherein this plaintiff was the appellant and the Fischer Baking Company and Schirber the respondents, filed on even date herewith, we determined that as to those parties the judgment of the Appellate Division should be modified and a trial de novo had on all issues.
This appeal is that of the Central Greyhound Lines, Inc., and Heasley and presents the problem of whether or not the judgment of the Appellate Division as to them should be affirmed in view of the fact that their joint tort-feasors have been granted a new trial on the question of their liability.
It was the original viewpoint of the Appellate Division, as expressed in its first opinion, that harmful error having been
committed in the trial court as to some of the defendants the judgments should be reversed as to all of them. After the reargument it held, in its second opinion, relying primarily on the case of Moersdorf, Admx., etc., v. New York Telephone Co., et al., 84 N.J.L. 747 (E. & A. 1913), and the rules of the former Supreme Court, that it had no discretion in the matter but should reverse only as to those defendants respecting whom reversible error had been committed, the questions raised against the several defendants being separable.
At common law and prior to the Practice Act of 1912 a reversal as to one joint tort-feasor required a reversal as to all. However, by virtue of the Practice Act and Rules 131 and 143 of the former Supreme Court promulgated as a result thereof it became discretionary with the court as to whether or not a reversal should be ordered as to all or less than all defendants where harmful error had been committed against some of them, provided the cause of action is separable. Roberts v. Saunders, 118 N.J.L. 548 (E. & A. 1937); Rose Drotar v. Pennsylvania Railroad Co., 120 N.J.L. 199 (Sup. Ct. 1938); affirmed, 123 N.J.L. 201 (E. & A. 1939). Moersdorf, Admx., etc., v. New ...