Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Eastwood, S.j.a.d.
The issue presented by this appeal is whether the defendants, Charles Frantzen and Omar Loland, may be held as joint tort-feasors, or whether the collision between the vehicles of Ristan and Loland and that between Ristan and Frantzen were so independent of each other, that having found liability as to both defendants, the jury should have assessed damages separately against each defendant.
A recital of the facts may be helpful in untangling the rather involved factual and legal issues presented by this appeal.
On December 14, 1951, during a snow storm, Leo Ristan, with Cora Darling as a passenger, was driving his truck in a northerly direction along Main Street in Bay Head, New Jersey. Defendant Omar Loland, while driving his automobile in a southerly direction on the same street, swerved to his left and collided with Ristan's truck, causing Ristan to be thrown sideways against the left-hand door of his truck. Mrs. Darling was thrown sideways against Ristan. The Ristan truck came to a stop at a 45 degrees angle across the highway. Immediately thereafter, defendant Frantzen, who was following Ristan, ran into the rear of Ristan's truck, causing Ristan to be thrown forward over the steering wheel, bending it out of shape with his chest. Mrs. Darling was also thrown forward under the dashboard. This collision changed the position of the Ristan truck from a 45 degrees angle to a 90 degrees angle.
Ristan and Darling, in their complaint, charged that their personal injury damages were caused by the separate and independent negligence of Loland and Frantzen and, in a separate count, charged the defendants as joint tort-feasors. This contention appears also in the pretrial order. A second action was instituted by Ristan in the Monmouth County District Court against Loland and Frantzen for recovery of his property damages. Thereafter, Frantzen instituted
suit in the Monmouth County District Court against Loland and Ristan for property damage to his automobile. All of the actions were consolidated for trial in the Law Division.
At the trial the action of Frantzen against Loland and Ristan was dismissed with prejudice, for failure to prove culpable negligence. The other issues were submitted to the jury, which returned a verdict of no cause of action against Loland on his counterclaim. Verdicts were entered in favor of Ristan and Darling against Loland and Frantzen, for their respective personal injuries and property damages, in the amount of $1,010.90 for Cora Darling, and in the amount of $3,591.76 (of which $718.76 represented property damage) for Ristan.
Thereafter the court denied Frantzen's motion for a new trial as to the verdict in favor of Ristan and Darling against Frantzen and Loland, but directed a new trial as to damages only of the action of Ristan against Loland and Frantzen, to determine the proportionate share of the damages due from each defendant. The defendant Frantzen then appealed to this court from the whole of the adverse judgments.
Frantzen contends that the jury verdict was contrary to the court's charge in that the jury's award was made jointly as to both defendants, whereas the court charged that should liability be found, it should apportion the damages between the defendants according to the damages caused by each; that the clerk of the trial court improperly molded the verdict; that the trial court erred in its charge on the matter of joint liability; that the court erred in refusing to charge the defendant's request concerning Frantzen's obligation as a motorist in a line of traffic.
The appellant Frantzen strenuously argues that the evidence clearly establishes that, assuming negligent acts of the defendants, such acts did not unite and concur to produce the injuries and damages complained of as to render them liable as joint tort-feasors, but, rather, if negligent at all, they were independent tort-feasors, each of whom may have caused injuries and damages, for which a separate and independent verdict should have been returned against each of
them for the respective amounts calculated by the jury to have been caused by each of them; that a single verdict against both defendants was inconsistent; that because the Loland car and his car did not strike the plaintiff's truck at exactly the same time, their negligence was not joint, and hence they could not be held jointly liable ...