McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
On a motion for summary judgment the judge of the Law Division resolved that this action was not maintainable in that its subject matter was res adjudicata. An accordant judgment was entered, the legal propriety of which we are requested to review.
The following pronouncement is familiar: "But a matter is not res adjudicata unless there be identity of the thing sued for, of the cause of action, of the persons and parties, of the quality of the persons for and against whom the claim is made, and the judgment in the former suit be so in point as to control the issue in the pending action. To render a prior judgment res adjudicata the record must show that the issue was taken on the same allegations which are the foundation of the second action. The test is whether the proof which would fully support the one case would have the same effect in tending to maintain the other." Smith v. Fischer Baking Co. , 105 N.J.L. 567, 568 (E. & A. 1929); Mershon v. Williams , 63 N.J.L. 398 (Sup. Ct. 1899);
Hoffmeier & Son v. Trost , 83 N.J.L. 358 (Sup. Ct. 1912); Windolph v. Lippincott , 107 N.J.L. 468 (E. & A. 1931).
Mindful of the foregoing judicial declaration, we bend our attention toward the pertinent facts of the present case. On July 4, 1949, the Glen Rock Independence Day Association, a corporation not organized for any pecuniary profit, in pursuance of its custom conducted patriotic services and a carnival on the grounds of the Glen Rock Public School, to which it invited the general public. In and about the area the association stationed temporary structures commonly designated as booths.
The plaintiff attended the carnival as an invitee and while there, a storm arose winged with a somewhat tempestuous gale which the plaintiff asserts dislodged portions of the booths and propelled them injuriously against him.
The plaintiff thereafter prosecuted an action against the Glen Rock Independence Day Association, Inc., and its alleged agent, Edward Heyer, to recover compensatory damages for his bodily injuries and incidental losses. The complaint accused the defendants of negligence:
"(1) in failing to employ competent servants, agents and employees to see that said carnival, exhibit and exhibition was conducted in a manner so as to see that the properties used in said exhibit were properly fixed and secured; (2) failure to see that a storm, squall or wind storm would occur and by its force uproot and remove same and cause painful and serious injuries to those lawfully upon the premises; (3) said defendants were guilty of recklessness, carelessness and negligence in the manner in which they secured their properties, exhibits, booths and other properties; (4) failure to take advantage of foreseeable conditions and danger reasonably to be foreseen which they knew and were chargeable with knowledge of, and were guilty of other acts of negligence which was the proximate cause of plaintiff's injuries."
At the conclusion of the plaintiff's branch of the case the alleged cause of action against the defendant Heyer was dismissed by the court, and the trial of the action against the association resulted in a jury verdict of no cause for action. A judgment was accordingly entered in favor of the defendants.
The present action against the defendant Scudder was subsequently instituted by the same plaintiff also in quest of the recovery of compensatory damages for the same injuries and losses sustained as a result of the same cause on the same occasion. Mr. Heyer seems to have been individually drawn into the former action because he was president of the association. Mr. Scudder, the defendant in the present action, was and perhaps now is a member of the board of trustees of the association, and in 1949 he was chairman of the booth committee.
We note the intrinsic similarity of the allegations of the two complaints. In the present action the plaintiff again declares that the association was "in charge of said carnival and in connection therewith used booths and exhibits as part of the general scheme of the exhibition and carnival," but alleges that "the said booths were assembled and erected by this defendant, who was duty-bound at all times to see that the work was done in a proper manner and was further duty-bound to see that the same were firmly fixed to the ground and fastened and otherwise ...