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Mijon v. Acquaire

Decided: July 30, 1958.

GLADYS M. MIJON, ARTHUR MIJON, ROY METZ, INDIVIDUALLY, ROY R. METZ, BY HIS GUARDIAN AD LITEM ROY METZ, ANNA METZ, DECEASED, BY HER ADMINISTRATOR AD PROSEQUENDUM ROY METZ, AND ROY METZ, GENERAL ADMINISTRATOR OF THE ESTATE OF ANNA METZ, DECEASED, PLAINTIFFS-RESPONDENTS-CROSS-APPELLANTS,
v.
VICTOR ACQUAIRE, DEFENDANT-APPELLANT-CROSS-RESPONDENT, AND HOWARD VAN SYCKLE, FRANKLIN LAKES DAIRY, INC., A NEW JERSEY CORPORATION, PETER GALDI, AND WESTWOOD TRANSPORTATION CO., A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS AND CROSS-RESPONDENTS, CONSOLIDATED WITH VICTOR ACQUAIRE, PLAINTIFF-APPELLANT, AND GEORGE ACQUAIRE, PLAINTIFF, V. ROY METZ AND GLADYS MIJON, DEFENDANTS, AND FRANKLIN LAKES DAIRY, INC. AND HOWARD VAN SYCKLE, DEFENDANTS-RESPONDENTS



Stanton, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D.

Hall

The suits in which these appeals are taken arose out of a four-vehicle accident occurring at the intersection of Franklin Lakes Road and Colonial Road in the Borough of Franklin Lakes, Bergen County.

The underlying facts were not in dispute. Franklin Lakes Road runs east and west. It is a two-lane road with a white line down the middle. The paved portion is 20 feet wide, with narrow dirt shoulders on each side. Colonial Road intersects it on its northerly side and runs northerly from it. There are no traffic control devices at the corner. The area is not too closely built up, and the legal speed limit was not definitely established.

Just prior to the accident, which occurred on June 6, 1956 shortly before noon with the weather clear and the road dry, three of the vehicles were proceeding easterly on Franklin

Lakes Road approaching the intersection. First was the passenger car driven by Mrs. Gladys Mijon, owned by Roy Metz, in which his wife, Mrs. Anna Metz (sister of Mrs. Mijon), and the Metz child were passengers. Following was a one-ton flat-bodied truck owned and driven by Victor Acquaire in which his father, George Acquaire, was a passenger. Behind the truck was a 17-ton milk tank tractor-trailer owned by Franklin Lakes Dairy, Inc. and driven by Howard Van Syckle. Approaching from the opposite direction was a bus owned by Westwood Transportation Co. and driven by Peter Galdi. There was no question of the agency of the non-owner drivers.

Mrs. Mijon, desirous of making a left turn to go north on Colonial Road, stopped near the center of the intersection, gave a hand signal and waited to let the bus go by before making the turn. Her car was struck in the rear by the Acquaire truck and the latter was similarly struck by the dairy truck. The Mijon car was pushed across the west-bound lane and collided with the bus, the point of impact and place of coming to rest of the vehicle being on the pavement edge of the shoulder at least ten feet east of the curb line of Colonial Road, i.e. , before the bus reached the intersection. All the collisions were severe. The Acquaire truck was pushed forward down Franklin Lakes Road and finally came to a stop almost 400 feet from where the dairy truck struck it. The latter stopped within the intersection. Mrs. Metz died some weeks later and it was stipulated her death resulted from the accident. Mrs. Mijon, the Metz child and the Acquaires suffered personal injuries. All the vehicles were damaged.

Two principal questions were involved. One was whether the dairy truck struck Acquaire before he hit the Mijon car and so caused him to hit Mijon, or whether Acquaire hit Mijon first, knocking the car across the road, and then was in turn struck by the dairy truck so that the latter had no connection with Mijon being forced into collision with the bus. The second was whether there was any evidence of negligence on the part of the bus driver proximately contributing

to the injuries and damages of the Mijon car occupants and owner.

A multitude of claims were asserted in three suits. In one, the Mijon people sued the three other vehicle owners and their drivers on claims for personal injuries to Mrs. Mijon and the Metz child, per quod damages of the husband and father, damages for the death of Mrs. Metz through the administrator ad prosequendum , and for her personal injuries to the date of death through the general administrator, with a per quod claim by her husband in connection with the latter, and for damages to the car. The bus driver cross-claimed against Victor Acquaire and the dairy and its driver for contribution under the Joint Tortfeasors Contribution Act, and Acquaire similarly cross-claimed against the dairy and its driver and the bus driver.

In another action, Victor Acquaire (represented by different counsel than in the defense of the Mijon suit) sued Mrs. Mijon, Metz, the dairy and its driver for personal injuries and property damage, and George Acquaire sued the same parties for personal injuries. By counterclaim against Victor Acquaire, the dairy and its driver sought contribution and the dairy claimed property damage, and by cross-claim similar contributory and compensatory relief was sought against Mrs. Mijon and Metz. An answer to the counterclaim against Acquaire was filed by the same counsel who were defending him in the Mijon suit. There was no claim for contribution by the dairy against the bus company or its driver. (The precise nature of the various claims for contribution will be more fully mentioned later).

By a district court action the bus company sued Metz, Mrs. Mijon, Victor Acquaire, the dairy and its driver for property damage.

The suits were consolidated prior to pretrial and so became one action (R.R. 4:43-1(e)). At the trial Acquaire was represented both as to his claim and his defense by counsel who appeared of record in his defense. After the jury was drawn, but before openings, the Acquaire and dairy claims as against Metz and Mrs. Mijon were voluntarily

dismissed with prejudice. It was at the same time agreed that the claims for contribution would be tried by the court simultaneously without mention thereof to the jury and determined by it after the jury verdict.

At the conclusion of all the evidence, counsel for the bus company and its driver made a motion for involuntary dismissal, on the merits, of the Mijon claims against the bus company and its driver and the Acquaire cross-claim for contribution against the latter. The trial court granted the motion on the ground that no reasonable mind could come to the conclusion that there was any evidence of negligence against the driver. The bus company then took a voluntary dismissal with prejudice of its claim for property damage and from then on was out of the case.

The jury returned verdicts as follows:

Against Victor Acquaire only:

Mrs. Mijon $5,000

Her husband per quod 1,000

Death claim (Mrs. Metz) 60,000

General administrator (Mrs. Metz) 20,000

Mr. Metz per quod, and property damage ...


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