On appeal from Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by William J. Brennan, Jr., J.
[16 NJ Page 268] At the trial an involuntary dismissal was granted defendant City of Newark at the end of plaintiffs' case, and the jury returned a verdict of no cause for action in favor of the city's employee, the defendant Curtiss, a mounted police officer. Plaintiffs, husband and wife, sought damages for injuries sustained when the horse assigned to Curtiss for mounted police duty, while tethered unattended where Curtiss had left it in a driveway
leading to a parking lot, kicked Mrs. Kelley as she walked away after feeding the horse sugar or candy.
Plaintiffs appealed the judgments in favor of both defendants to the Appellate Division, but abandoned the appeal as to Curtiss, and limited the appeal from the judgment for the city to the single question whether plaintiffs' proofs to show active wrongdoing participated in by the city sufficed to withstand an involuntary dismissal in the city's favor. The Appellate Division found that the proofs were sufficient to present a jury question as to that issue and, in an opinion by Judge Clapp comprehensively discussing the principles of the liability of a municipality for torts, reversed and remanded for a new trial against the city, 29 N.J. Super. 291 (1954). The city sought certification, which we granted, 15 N.J. 381 (1954).
Both the city's petition for certification and its brief urge a proposition not advanced in the Appellate Division, namely, that at all events the final judgment upon the verdict in favor of the employee Curtiss is a complete bar to plaintiffs' further prosecution of the action against Curtiss' employer, the city.
We do not think that the city's failure to advance this proposition in the Appellate Division should deter us from considering and deciding it in the circumstances of this case. The asserted bar of the Curtiss judgment is a plea of res judicata, an affirmative defense, to be pleaded as such, R.R. 4:8-3, Bango v. Ward, 12 N.J. 415 (1953), although it may also be raised by motion and affidavit, Kelleher v. Lozzi, 7 N.J. 17, 25 (1951). We may assume that if plaintiffs had followed through with their appeal and had brought the Curtiss judgment before the Appellate Division, the record would have sufficed to permit, if not to require, the city to argue the alleged bar of the judgment, see McKnight v. Cassady, 113 N.J.L. 565 (E. & A. 1934). But that was not the case, and therefore, the judgment being an after-occurring event under R.R. 4:15-4, proceedings by the city to supplement the record were requisite to frame the issue. The city made no effort in the Appellate Division to
invoke the original jurisdiction of that court to supplement the record, and, while presenting the question in its petition for certification and brief in this court, has made no formal application to us to do so. However, though we assume, while we doubt, the application in the circumstances of this case of the rule of appellate practice that an appellant will not be heard to urge here a point not raised in the Appellate Division, see State v. Shiren, 9 N.J. 445, 455 (1952), R.R. 1:7-1(c) and R.R. 1:7-4(c) (made applicable to the Appellate Division by R.R. 2:7-1), the waiver which is the predicate of that rule is of the city's right to be heard here on the point and would not estop the city, upon remand of the case, from seeking leave of the trial court to raise the bar of the judgment by appropriate supplemental pleading. In that circumstance, in accord with the philosophy of our present procedural framework to avoid unnecessary expense and waste of time consistent with the furtherance of the fair administration of justice, we ought not hesitate to adjudge the question if the matter is ripe for our determination. We think it is. Both parties have fully briefed and orally argued the issue on its merits. No objection is or was made by plaintiffs that the technical niceties for presenting the question were not met. We shall exercise our original jurisdiction, Const. 1947, Art. VI, Sec. V, par. 3; R.R. 1:5-4, and treat the record in the circumstances as if the city had applied for and been granted leave appropriately to frame the issue, and upon that basis proceed to decide it.
The decided weight of authority is that where employer and employee are joined as parties defendant in an action for injuries allegedly occasioned solely by the negligence or misfeasance of the employee, a verdict which exonerates the employee from liability requires also the exoneration of the employer. Vaniewsky v. Demarest Brothers Co., 106 N.J.L. 34 (Sup. Ct. 1929), affirmed on the opinion below 107 N.J.L. 389 (E. & A. 1931); Hummers v. Public Service Electric and Gas Co., 8 N.J. Misc. 689 (Sup. Ct. 1930), affirmed 108 N.J.L. 196 (E. & A. 1931); Prendergast v. Jacobs, 110 N.J.L. 435 (E. & A. 1933); Restatement,
Judgments, sec. 99; 35 Am. Jur., Master and Servant, sec. 534. The rule is founded upon considerations of fundamental fairness that, if the employee is not to be held responsible for his wrongdoing, the employer whose liability is asserted solely upon the basis of imputed responsibility for his employee's wrong cannot in fairness and justice be required to respond in damages for it. And it does not matter that the jury may have acquitted the employee in error. If the judgment is final it is considered that "* * * The plaintiff has had his day in court on the issue in a forum of his choosing [and the] litigation should come to an end." Developments in the Law -- Res Judicata, 65 Harv. L. Rev. 818, 863 (1952).
The plaintiffs contend, however, that their case against the city is not premised solely upon the negligence or wrong of Curtiss but upon an independent basis of liability, thus bringing the action within the rule of Batts v. Joseph Newman, Inc., 3 N.J. 503 (1950). In the Batts case the injuries were caused when a cylindrical tank dropped from a truck of the defendant employer. The driver defendant was acquitted of negligence upon proofs that the negligence of other employees of the defendant employer in failing properly to secure the tank to the truck had caused it to fall off. It was held that ...