On appeal from the Superior Court, Appellate Division.
For affirmance -- Justices Oliphant, Wachenfeld and Burling. For reversal -- Chief Justice Vanderbilt and Justice Heher. The opinion of the court was delivered by Oliphant, J. Vanderbilt, C.J. (dissenting).
This appeal presents to us but a single question, namely whether or not R.S. 46:36-1 makes the contributory negligence of a bailee or lessee's agent, servant or employee under the facts of the particular case a bar to plaintiff's recovery.
This cause is before the court as the result of our having granted plaintiff's petition for certification to review a judgment of the Appellate Division of the Superior Court which affirmed a judgment of the Passaic County District Court entered in favor of the defendant.
The plaintiff, a Connecticut corporation, filed a complaint on July 5, 1950, against the defendant for property damages sustained by it as the result of a collision between its automobile and that of the defendant in Upper Montclair, New Jersey. At the time of the accident plaintiff's car was under lease by written instrument to Veeder-Root, Inc., and was in the possession of William T. Heydt, Sr., an employee of the lessee.
The record shows that the defendant here originally brought suit in the Essex County District Court against Heydt to recover for personal injuries and property damage suffered by her from the accident. There was a verdict of no cause for action, the court finding negligence on the part of both the defendant here and Heydt. The instant action was then brought and at the trial defendant moved to dismiss the complaint on the ground that the judgment rendered in the Essex County District Court was res adjudicata because Heydt was not the agent of the plaintiff-bailor, and the court having found that both the defendant and Heydt were negligent and that the cause arose out of the same accident, plaintiff's suit against her was barred, the negligence of Heydt being imputable to the plaintiff as bailor.
This motion to dismiss was denied on the ground that the judgment in the Essex County District Court was not res adjudicata, and the court declared the statute R.S. 46:36-1, pertaining to the contributory negligence of a bailee, his
agents, servants or employees, which provides that such contributory negligence shall constitute a proper and valid defense to an action for damages to the goods and that it be a complete bar to recovery in the same manner as though the suit was brought by the bailee or his agents, servants or employees, was not applicable. Judgment was rendered for the defendant because of plaintiff's failure to establish by a fair preponderance of the evidence that the defendant was guilty of negligence.
On appeal to the Appellate Division of the Superior Court the judgment rendered below was affirmed. That court, however, determined that both the defendant and Heydt were negligent and that the judgment rendered in the Essex County District Court was not res adjudicata of the instant action, but contra to the declaration of the Passaic County District Court held that R.S. 46:36-1 was applicable and that therefore the negligence of Heydt was imputable to the plaintiff.
Plaintiff's attorney, after judgment was entered in the Passaic County District Court, for appeal purposes, served on defendant's attorney a statement of evidence and proceedings in lieu of stenographic transcript, Rule 1:2-23, which was approved by defendant's attorney. There appears therein the following:
"Plaintiff then produced William T. Heydt, Sr., who testified that he was at the time of the accident in the employ of Veeder-Root, Inc., which had leased plaintiff's automobile * * *."
A statement such as this is in the nature of a stipulation; it is to be taken most strongly against him who prepares it. An agreement as to certain facts in a case conclude the parties so far as they go and is binding particularly on the party who makes it. Decker v. Smith & Co., 88 N.J.L. 630 (E. & A. 1915); R. E. Dudley Co., Inc., v. Aron et al., 106 N.J.L. 100 (E. & A. 1929).
But in the statement of evidence it is further said: "He (Heydt) further testified that he was taking his four children
for haircuts * * *," and in the findings of fact and conclusions of law prepared and filed by the court, Rule 7:13-3, appears the following: "The witness, Heydt, testified that at the time of the accident he was using the car on his own business, ...