On appeal from the Superior Court, Law Division, Passaic County.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Ackerson. For reversal -- Justice Burling. The opinion of the court was delivered by Case, J.
The appeal is from an order in the Superior Court, Law Division, Passaic County, striking the complaint and awarding judgment to the defendant against the plaintiff. It comes to us on our own certification.
The case turns on the effect to be given the disposition of an earlier suit arising out of the same state of facts wherein the present defendant was plaintiff and the present plaintiff was defendant. On or about August 18, 1949, there was a collision at a street intersection in the Borough of East Paterson between an automobile owned and driven by Louis Lozzi and an automobile owned and driven by Agnes M. Kelleher, then Agnes Melconian. Lozzi sued Kelleher in the Bergen County Court on a complaint which charged Kelleher with liability in that she negligently operated a defectively equipped automobile resulting in personal injuries to Lozzi and damages to his car. Kelleher filed an answer in which she admitted ownership and operation but otherwise denied the substantial allegations of the complaint. She incorporated in her answer three special defenses charging respectively that (1) Lozzi was guilty of contributory negligence, (2) Lozzi assumed the risk and (3) the accident was caused by the negligence of a third party over whom Kelleher had no control. In due course the case came to pretrial conference where, February 10, 1950, an order was stipulated by counsel and signed by the court setting forth, inter alia, that negligence and contributory negligence were the matters in dispute
and that a property damage bill paid by Lozzi in the amount of $331.50 and a physician's bill for services to Lozzi in the amount of $266 were to be admitted in evidence. On March 17, 1950, a paper of dismissal was signed by the attorneys for the parties plaintiff and defendant and filed. It reads: "Please take notice that the above entitled cause is hereby dismissed without costs to either party against the other. (Signed) Peter J. Cammarano, Attorney for Plaintiff; Wilbur A. Stevens, Attorney for Defendant." The consideration for the dismissal was the sum of $550 paid to Lozzi in settlement of the action and a release executed and delivered by Lozzi.
On August 21, 1950, Kelleher filed her present complaint restating the accident, charging Lozzi with liability for her property loss and personal injuries in that he negligently operated his own car and claiming $10,500 damages. Lozzi then moved for and was granted the disputed judgment of dismissal because of the incidents in the former suit.
Several rules of the court are cited to us by one or the other of the parties. They are respectively Rules 3:1-2, 3:12-2, 3:12-8, 3:13-1, 3:41-1(a), 3:41-2 and 3:42-1. The essence of these rules, to the extent of their present pertinency, is:
3:1-2. "The rules shall be construed to render the civil practice just and simple and to prevent unjustifiable expense and delay. * * *"
3:12-2. "Every defense, legal or equitable, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the answer thereto, except that the following defenses may at the option of the pleader be made by motion: * * * (5) failure to state a claim upon which relief can be granted * * *."
3:12-8. "A party waives all defenses and objections which he does not present either by motion as hereinbefore provided or, if he has made no motion, in his answer or reply * * *," with exceptions not here pertinent.
3:13-1. "A pleading may state as a counterclaim any claim against the opposing party whether or not arising out of the transaction or occurrence that is the subject matter of the opposing ...