On appeal from the Superior Court, Appellate Division.
For dismissal -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
[21 NJ Page 150] This is an appeal, purportedly taken as of right pursuant to R.R. 1:2-1(a), from a judgment of the Appellate Division affirming a judgment against the appellants following a jury trial. The procedural route the appellants pursued to bring the cause before us is complex as well as unique and will be subjected to closer scrutiny hereafter.
The action arises out of an automobile accident and involves three separate and distinct parties. The plaintiff, Klotz, was a passenger in an automobile driven by the defendant Lee. That automobile and one driven by the defendant John W. Breish, but owned by the defendant P. J. Breish & Sons, were involved in a head-on collision on the Mays Landing-Somers Point road in Egg Harbor Township. Klotz, Lee and John W. Breish sustained personal injuries in the collision, and both automobiles were damaged extensively.
Klotz, who was Lee's passenger, instituted this action against both Lee and the Breishes, in which he claimed both or either of them was negligent and liable for the injuries which he had suffered in the accident. Lee answered denying any negligence on his part and cross-claiming against the Breishes for damages to his automobile. The Breishes likewise answered denying liability and filed a cross-claim against Lee for damages to their automobile.
The issues framed by the pleadings and the pretrial order were thus quite simple and the ensuing trial proceeded without incident for two days. Between the close of the trial on the second day and the morning of the third day, counsel for Lee's insurance carrier, who was defending the Klotz action on Lee's behalf as well as prosecuting Lee's cross-claim against the Breishes, entered into a settlement of Klotz' claim against Lee. The settlement provided, in substance, that if the jury returned a verdict, regardless of against whom, Lee's insurance company would pay Klotz $12,500 in full settlement of his claim against Lee, and if the verdict was against both Lee and the Breishes, Klotz would not exact more than fifty per cent of the amount awarded from the Breishes or their insurance carrier.
While the stipulation of settlement did not expressly preserve Klotz' rights against the Breishes, it is patent from the very terms of the agreement and the context in which it was made that it was without prejudice on the part of Klotz to pursue his action against the Breishes and, indeed, against Lee as well, subject to the limitation on the amount of recovery as set forth in the agreement. The agreement, under these
circumstances, did not constitute a "release" of one joint tortfeasor so as to effect a release of all. See Judson v. People's Bank & Trust Co. of Westfield, 17 N.J. 67, 85 (1954); Adolph Gottscho, Inc., v. American Marking Corp., 18 N.J. 467, 471 (1955).
On the morning of the third day of the trial, the settlement was brought to the attention of the trial court and the Breishes' counsel, and we are told, no transcript having been made, that the matter was fully discussed in chambers. The trial continued on the third day, by the end of which the plaintiff had concluded his case.
At that point, the Breishes' counsel announced he had several motions to make but asked that the motions go over to the next court day. This request was granted, and when the trial was resumed, counsel proffered the following motions: he asked that Klotz's case be dismissed as against the Breishes because of lack of evidence; that Klotz' claim against the Breishes be dismissed because the agreement between Klotz and Lee constituted a release of one joint tortfeasor and thus operated as a discharge of all joint tortfeasors; and that Lee's cross-claim against the Breishes be dismissed inasmuch as the settlement agreement constituted an admission of Lee's responsibility for the accident.
Before us, appellants contend that at that juncture of the case they also moved to dismiss Klotz' claim against Lee on the ground there was no longer any issue as between those parties. While the record fails to disclose such a motion was in fact made, we shall assume for the purposes of this appeal that it was.
In any event, all of the Breish motions were denied by the trial court, which permitted the trial to continue as it had been instituted, with Klotz litigating against both Lee and the Breishes ...