On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justices Heher and Oliphant. The opinion of the court was delivered by Wachenfeld, J.
The inquiry here is a novel one revolving around the application of the recently enacted Joint Tortfeasors Contribution Law, L. 1952, c. 335, N.J.S. 2 A:53 A -1 et seq.
Two actions were instituted arising out of a single highway accident in which a tractor-trailer and two automobiles were involved. They were consolidated for trial.
In the first, Victor Lynn Lines, Inc., owner of the truck, sued John T. Bray, owner and operator of one of the automobiles, and James A. Gross, driver of the other car, joining also as a defendant Gross' wife, owner of the car he drove and an occupant of it at the time of the accident. In the
second, Bray sued Victor Lynn Lines, its driver, Hayward T. Sockriter, and Gross. Gross sought no relief by way of counter-claim or cross-claim against either plaintiff or defendant. At the close of the plaintiff's case in the first suit, the defendant Bray moved to dismiss Victor Lynn Lines' complaint as to him and the plaintiff assented.
The converse occurred on the completion of the plaintiff's case in the second action. Victor Lynn Lines moved for a dismissal of Bray's suit against it and its driver, over the mild protest of the plaintiff. The attorney for the defendant Gross, who even doubted his right to address the court because he represented neither of the parties involved in the motion, suggested that testimony still to come might show negligence on the part of the truck driver, but the court nevertheless granted the motion. Nothing had been called to the court's notice up to this time of a possible right of contribution between the co-defendants in the suit brought against them by Bray.
The trial proceeded with Gross the sole defendant in the Bray action and Gross and his wife the only defendants in the Victor Lynn Lines action. When all the testimony had been submitted and before the cases were to be submitted to the jury, Gross' attorney moved to vacate the order of dismissal of the complaint by Bray against Victor Lynn Lines, Inc., and its driver Sockriter, alluding for the first time to the possible right of contribution Gross might have against his co-defendant in the action under the Joint Tortfeasors Contribution Law.
The motion was denied, although the court commented that had the contribution aspect of the matter been brought to its attention in the first instance, it would have granted the dismissal without prejudice and so would modify its order to that extent, no objection being interposed by counsel for Victor Lynn Lines and Sockriter.
The jury returned verdicts of $7,500 for Bray and $2,242.22 for Victor Lynn Lines, and judgments were entered accordingly. The appeal in both actions to the Appellate Division is brought here by certification on our own motion.
The appellant contends there was error because the dismissal of Bray's action against the trucking company occurred before he, Gross, had the opportunity to prove the "tort feasorship" of his ...