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Public Service Electric and Gas Co. v. Waldroup

Decided: December 15, 1955.


Schettino, Hegarty and Speakman. The opinion of the court was delivered by Speakman, J.s.c. (temporarily assigned).


The genesis of this controversy was an accident which occurred on August 17, 1951 in the vicinity of Bordentown near the interchange between the New Jersey Turnpike and Route 39 (now Route 206).

The defendant George M. Brewster & Son, Inc., under contract with the Turnpike Authority, was engaged in constructing the interchange and the Turnpike, in the course of which it was transporting dirt fill for the purpose of raising the ground elevation near a new overpass over Route 39. This fill was being dumped near one of the poles of a temporary electric distribution line, owned and maintained by plaintiff Public Service Electric & Gas Company. The upper end of a guy wire was attached to the pole above some of the

high voltage lines and the lower end was anchored in the ground some distance from the pole. The guy wire was not energized, but the distribution lines carried two 26,000-voltage circuits, one 4,000-voltage circuit and one series street light circuit.

At the time of the accident Ralph L. Snyder, an employee of defendant, was standing on the ground near this pole. Roy M. Waldroup, an employee of defendant who was operating a Euclid dirt mover, attempted to drive it between the base of the pole and the place of anchorage of the guy wire, but in doing so, drove it against the guy wire in such a manner as to cause it to break. The broken portion attached to the pole came in contact with a high voltage electric wire and became charged. The loose end of this portion of the guy wire swung through the air and came into direct contact with Snyder, causing his instant death by electrocution.

On September 7, 1951 Snyder's widow as administratrix ad prosequendum instituted an action for wrongful death in the Law Division of the Superior Court against the present plaintiff, alleging that its negligence, in the respects hereinafter detailed, caused decedent's death. Judgment by consent in the amount of $60,000 was entered in that action on June 4, 1953, and on June 22, 1953 the judgment was paid by Public Service.

Thereafter, on July 21, 1953, the present action against Waldroup and Brewster was commenced in the Law Division. The complaint is in four counts. The first and second counts seek recovery, by way of indemnity, of the full amount of $60,000 from Waldroup and Brewster respectively. Alternatively, the third and fourth counts seek contribution of $30,000 from the same parties.

The theory of the cause of action first asserted is that the plaintiff, an alleged passive tort-feasor, is entitled to full indemnity from the defendants, alleged to be active tort-feasors. The theory of the alternative cause of action is that plaintiff and defendants are joint tort-feasors and that plaintiff, having paid the injured third party in full, is

entitled to contribution under the Joint Tort-Feasors Contribution Act.

The service of the summons and complaint upon the defendant Waldroup was set aside, and the action was continued against defendant Brewster alone, on the second and fourth counts of the complaint. In its answer this defendant denied the allegations of negligence and pleaded a number of affirmative defenses to the asserted causes of action. We need mention only four: (1) plaintiff was guilty of active and primary negligence; (2) plaintiff is estopped by the judgment in the action previously mentioned from denying that it was guilty of active negligence; (3) in consideration of defendant's payment to plaintiff of the sum of $34.33, the value of the guy wire broken by defendant's employee, plaintiff on October 30, 1951 released defendant from all claims arising out of the accident of August 17, 1951, and (4) defendant's liability as a result of the death of its employee is determined exclusively by the Workmen's Compensation Act, and therefore, plaintiff is not entitled to recover from it either indemnity or contribution.

At the trial, at the close of the plaintiff's case, defendant moved for an involuntary dismissal of both the second and fourth counts: of the fourth count on the ground that it appeared conclusively that Snyder's death was caused by an accident arising out of and in the course of his employment with the defendant, and therefore, plaintiff was not entitled to contribution under the holding in Farren v. New Jersey Turnpike Authority , 31 N.J. Super. 356 (App. Div. 1954); and of the second count on the ground that plaintiff had failed to establish a claim. The motion was denied with respect to the second count, but granted as to the fourth count.

Defendant proceeded with its defense and presented a number of witnesses and introduced into evidence the record in the action brought by Snyder's administratrix ad prosequendum against the present plaintiff, consisting of the complaint, answer, pretrial order and judgment entered therein.

At the conclusion of the presentation of all the evidence, defendant moved for an involuntary dismissal of the second count on the ground that the judgment entered by consent in the prior action constituted an adjudication that the present plaintiff was guilty of active negligence and that plaintiff was bound by it. The trial judge granted the motion, and from the subsequent judgment entered in favor of the defendant on both the second and fourth counts of the complaint, the plaintiff appealed.

Prior to argument the appeal from the dismissal of the fourth count was abandoned, so there is presented for our determination only the validity of the judgment dismissing the second count.

Plaintiff's argument that the judgment should be reversed is two fold. It asserts, first, that under the proofs a jury question was presented as to whether its admitted negligence was "mere passive negligence"; and second, that the doctrine of estoppel by judgment or collateral estoppel has no application because (a) there is no identity of parties in the present action with those involved in the prior action and (b) there was no litigation of issues in the prior action.

We first consider plaintiff's second argument. It is a fundamental rule that facts and questions in issue in an action and there admitted or judicially determined are conclusively settled by a judgment entered therein, and such facts or questions become res judicata in all subsequent litigation between the same parties and their privies. Hancock v. Singer Mfg. Co. , 62 N.J.L. 289 (E. & A. 1898); Middlesex Concrete, etc., Corp. v. Borough of Carteret , 35 N.J. Super. 226 (App. Div. 1955) -- as to a related aspect of the same case, see 36 N.J. Super. 400 (App. Div. 1955), certification denied 19 N.J. 383 (1955), and 19 N.J. 384 (1955); 30 Am. Jur., Judgments, sec. 178; 50 C.J.S., Judgments , ยง 686. This is known as the doctrine of collateral estoppel or estoppel by judgment and is to be distinguished from the doctrine of res judicata , which is that in any action on a cause previously litigated by the same parties or their privies, a general judgment in the prior action is considered

a finding against the party affected on all grounds that were or could have been raised therein. Kelley v. Curtiss , 16 N.J. 265 (1954); Middlesex Concrete, etc., Corp. v. Borough of Carteret, supra; 30 Am. Jur., Judgments, secs. 161-177, and cases cited therein.

A judgment by consent is presumed to be entered in the light of all the existing circumstances of the litigation. Although such a judgment is considered a contract of the parties acknowledged and sanctioned by the court, it is regarded as an adverse judgment and is conclusive and effective as an estoppel to the same extent as though entered after a full trial. Fidelity Union Trust Co. v. Union Cemetery Association , 136 N.J. Eq. 15 (Ch. 1944), affirmed per curiam , 137 N.J. Eq. 455 (E. & A. 1946) and 137 N.J. Eq. 456 (E. & A. 1946); Middlesex Concrete, etc., Corp. v. Borough of Carteret, supra; 31 Am. Jur., Judgments, sec. 458; 50 Am. Jur., Judgments, sec. 705.

There is little authority, see Annotation, 2 A.L.R. 2 d 514, to support plaintiff's contention that for an issue to have been litigated for the purpose of estoppel, there must have been a verdict or a finding on evidence presented at a trial. On the contrary, the authorities previously cited herein, as well as innumerable others, hold either expressly or by necessary implication that a fact or question has been litigated if it has been put in issue by the pleadings and a judgment by consent has been entered thereon. Such a judgment constitutes an adjudication on the merits. Davis v. Leach , 121 F. Supp. 58 (D.C.E.D. Tex. 1954); 15 R.C.L., Judgments, sec. 90.

The contrary view urged by plaintiff would seriously impair the effectiveness of the judicial process. Consent judgments are entered daily in our courts, and if they do not have a binding effect as to all of the issues raised, it would not be long before resort to this expeditious way of terminating litigation would cease. Certainly, under our present practice, which allows parties to protect themselves by providing for partial judgments and special findings to be made on issues of fact, a general judgment entered by consent should

have as great if not greater adjudicative efficacy as to all of the questions in issue as one entered after a trial. See Berry v. Somerset Ry. , 89 Me. 552, 36 A. 904 (Sup. Jud. Ct. 1897); Deaver v. Jones , 114 N.C. 649, 19 S.E. 637 (Sup. Ct. 1894); Keen v. Parker , 217 N.C. 378, 8 S.E. 2 d 209 (Sup. Ct. 1940), which hold that a consent judgment, since it is by agreement, should have ...

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