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New Amsterdam Casualty Co. v. Popovich

Decided: April 25, 1955.

NEW AMSTERDAM CASUALTY COMPANY, A CORPORATION, PLAINTIFF-RESPONDENT,
v.
NICHOLAS POPOVICH, SR., AND NICHOLAS POPOVICH, JR., INDIVIDUALLY AND TRADING AS N. POPOVICH & SON, DEFENDANTS-APPELLANTS



On appeal from the Superior Court, Appellate Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Oliphant, J.

Oliphant

This is an appeal from a judgment of the Appellate Division which reversed a judgment of the Superior Court, Law Division, in favor of the defendants-appellants and against the plaintiff-respondent entered on a jury verdict of no cause of action and remanding the cause for a new trial. We granted certification on application made under R.R. 1:10-2(d).

The basic question involved was whether there is a right of subrogation as between two employers of a single employee. One Mason was killed while operating a tractor owned by the defendants-appellants to which was attached a trailer owned by Kramer Brothers Freight Lines, Inc., an assured of the plaintiff-respondent. Kramer Brothers were engaged in interstate transportation of commodities by motor vehicle under a federal license between certain western cities and certain cities on the eastern seaboard. While the tractor was owned by the defendants-appellants its use was under a lease between the appellants and Kramer Brothers. The principal question involved and tried before the Compensation Bureau was, by whom was Mason employed?

Two petitions for compensation were filed with the Bureau, one against Kramer Brothers and the other against the appellants, seeking compensation against both. On motion, with consent of counsel for both the then respondents, the two petitions were consolidated and tried together in the Bureau. The Bureau found as a matter of fact and law that the operation of the tractor and trailer and the employment of Mason under the arrangement between the then two respondents was not a partnership but in legal effect was a joint enterprise and both respondents were found jointly and equally liable and a judgment in the amount of $22,932 plus

a counsel fee of $900 was entered against both the respondents. When the judgment was not paid by either of the respondents the decedent's representative filed an action in the Union County Court against the plaintiff-respondent here, the compensation carrier for Kramer Brothers, and under the statute, R.S. 34:15-84, a judgment was entered for the full amount of the award.

Kramer Brothers' insurer, the plaintiff-respondent here, then filed a complaint in the Superior Court stating that it issued a standard workmen's compensation policy to Kramer Brothers and alleging the judgment in the Bureau and the judgment in the County Court, and further alleging that a demand from the defendants-appellants for contribution was refused. In a second count it alleged that according to the Compensation Act plaintiff-respondent had demanded from the defendants-appellants contribution which was refused, and demanded judgment for one-half the payments made by the plaintiff-respondent and any further sums to be paid by it on account of the award in the Bureau. By way of answer the defendants-appellants denied Mason was their employee and also denied their liability for contribution and set up five separate defenses: (1) that they were under no legal obligation to the plaintiff; (2) that there could be no contribution between joint tortfeasors; (3) that R.S. 34:15-1 contained no provision for the joint payment of the award; (4) that there was no privity of contract between the defendants and other persons; (5) they had no legal duty to contribute any moneys paid by the plaintiff on behalf of Kramer Brothers.

The Superior Court entered a summary judgment for the plaintiff on the ground that the award of the Bureau was res adjudicata on the question of employment. This was reversed by the Appellate Division which held the common law rule as to contribution by joint tortfeasors did not apply; (2) that the award by the Bureau against co-employers was not res adjudicata of their rights inter sese in a subsequent action between them for contribution since the Bureau had no authority to make such a determination in a compensation

proceeding. The cause was remanded for a new trial. New Amsterdam Casualty Co. v. Popovich, 27 N.J. Super. 40 (App. Div. 1953). On the remand a judgment of no cause for action in favor of the defendants-appellants and against the plaintiff-respondent was entered on the jury verdict as above stated.

On appeal this second judgment was reversed by the Appellate Division on the ground that the trial court committed error in refusing to admit into evidence certified copies of the pleadings and award in the Workmen's Compensation Bureau which were offered for the purpose of showing that in the answers filed by the defendants-appellants in that case they admitted that Mason was an employee of theirs. This we agree was error. Prior assertions made in pleadings or evidence which are inconsistent with or contradictory of present claims can be treated as an admission in subsequent litigation. Freeman v. Ackerson, 94 N.J.L. 308 (Sup. Ct. 1920); Lincks v. Erie Railroad Co., 97 N.J.L. 343 (E. & A. 1922).

In the course of its opinion this part of the Appellate Division held that the prior decision of the Appellate Division was ...


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