On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Jacobs and Brennan. For affirmance -- Justices Heher and Burling. The opinion of the court was delivered by Oliphant, J.
On February 27, 1953 plaintiff was a passenger in a bus of the defendant Trenton Transit operated by its employee Thomas J. Grosso, which bus collided with an automobile owned and operated by the defendant Charles H. McLean at the intersection of Roebling and South Clinton Avenues in Trenton, New Jersey. The attorney for the plaintiff filed a complaint which stated in its caption "John Lertch, Plaintiff v. Trenton Transit, a corporation of the State of New Jersey and Thomas J. Grosso, or in the alternative Charles H. McLean." The complaint contained three counts charging several liability, the first count charging negligence against Trenton Transit; the second count charging negligence on the part of Grosso individually and the third count charging negligence against McLean. There was no count charging that the accident was caused by the negligence of Grosso and McLean.
At the pretrial an order was entered which in part reads as follows:
"Plaintiff admittedly a passenger in the bus sues the corporate defendant and the defendant Grosso on the one hand and in the alternative defendant McLean for personal injuries alleged to be permanent, loss of earnings and out of pocket expenses in an effort to effect his cure. He alleges in the alternative the negligence of the corporate defendant and defendant Grosso on the one hand or in the alternative the defendant McLean as the proximate cause of his injuries and consequent damages." (Italics supplied.)
On the trial of the issue the jury returned a verdict in favor of the plaintiff against the defendant McLean in the sum of $1,500 and returned verdicts of no cause of action in favor of the defendants Trenton Transit and Thomas J. Grosso. Judgment on the verdict was accordingly entered.
An appeal was taken to the Appellate Division by the plaintiff and that court found all his grounds to be without merit but on its review of the case, on its own motion,
discovered that the trial court's charge to the jury was inconsistent and confusing. It chose to grasp upon this on the ground that it was plain error affecting a substantial right of the plaintiff, R.R. 1:5-3(c), and therefore reversed the entire judgment and ordered a retrial on all issues. The defendant Trenton Transit and Thomas J. Grosso applied to this court for certification, which was granted under R.R. 1:10-2(d). On the argument before this court counsel for the plaintiff frankly stated that he knew the suit was in the alternative from its inception to the end of the trial but did nothing to correct it, but now takes the position that the Appellate Division had the inherent power to correct the situation. There can be no question that it has the power to correct a situation where a substantial right of the plaintiff is involved but under the facts present here no such situation exists.
The pretrial order is a cornerstone in the building of our practice in the trial of cases under the new judicial system. One of the purposes of the rule, R.R. 4:29-1, is to allow great liberality in forming and amending pretrial orders so that all phases of the controversy may be finally and justly determined between the parties but as we said in Schlossberg v. Jersey City Sewerage Authority, 15 N.J. 360, 370 (1954):
"However, the flexibility and liberality allowed by our procedural system to enable the litigants before actually going to trial to identify and agree upon the issues really in controversy between them are not to be twisted into license to roam at will at the trial outside the agreed upon issues framed in that manner and reduced to expression in the pretrial order. Litigants may move about with greatest freedom during the pleading, discovery and pretrial stages of the action, but after the framework of the case has been settled under the pleadings and the pretrial order, the introduction of additional issues or a shift of ground from those agreed upon may be made over timely and meritorious objection only as permitted by R.R. 4:29-1(b)(15) and 4:15-2 applicable to amendments offered after entry of the pretrial order, or during trial." (Italics supplied.)
The pretrial order in this case defining the issues of negligence between the parties as being ...