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Donofrio v. Farr Lincoln Mercury Inc.

Decided: March 17, 1959.


Price, Schettino and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.


Anthony Donofrio (Donofrio) sued Farr Lincoln Mercury, Inc. (Farr), Joseph L. Reidy (Reidy), and Fossett Bus Co. (Fossett), for injuries he sustained when struck by a radiator which fell from the wall of premises owned by Reidy, rented by him to Farr, and sublet by the latter to Fossett. Donofrio recovered a judgment in the Superior Court of $7,500 against Farr, but the jury returned a verdict in favor of Reidy and Fossett. Farr's notice of appeal says it is "from the final judgment * * * entered in favor of plaintiff * * *" His notice of appeal does not challenge the judgments in favor of Reidy and Fossett.

Plaintiff cross-appeals from the judgments in favor of Reidy and Fossett, but he admits in his brief that he has done so only "In order to protect the interests of the plaintiff * * *. It is not plaintiff's purpose at this time, however, to suggest error at the trial below with respect to defendants Reidy and Fossett Bus Co. Should the court ultimately order a retrial of the cause, plaintiff would in that event urge that all parties be included." On the contrary, plaintiff argues that there was no error and that the judgment should be affirmed. Therefore we shall not consider plaintiff's appeal. Cf., Mijon v. Acquaire , 51 N.J. Super. 426, 437 (App. Div. 1958), certification denied 28 N.J. 146 (1958).

Farr appeals on two grounds. The first is that the court below erred in its charge relating to res ipsa loquitur. The second ground of appeal is that "The court below erred in refusing to permit the jury to pass upon the meaning of the

phrase 'structural repairs' contained in the lease" from Reidy to Farr.

When Farr's counsel objected to the court's original charge on res ipsa loquitur , the court admitted that the charge may have been inaccurate. He therefore called back the jurors and said to them, "I instruct you to disabuse your minds of everything I said as to res ipsa loquitur , and I will now state the rule to you as I think it is applicable in this case. * * *" He then stated what he conceived to be the correct rule. To this statement there was no objection by Farr's counsel. The accuracy of this charge may therefore not now be urged as a ground of appeal. R.R. 4:52-1.

Before dealing with the second ground of appeal (which involves only Reidy) we deem it important to point out the following considerations, nearly all of which apply to the first ground of appeal as well. As we have said, the notice of appeal is from the judgment in favor of plaintiff and makes no mention of the judgments in favor of Reidy and Fossett; and in Farr's argument on this appeal the judgment in favor of plaintiff is not attacked on any ground. In effect, Farr does not contend that plaintiff should not hold the judgment against Farr, but that Reidy and Fossett should also have been held liable.

Farr filed no cross-claim against Reidy nor did he ask any relief against him in the pleadings, the pretrial order, or at the trial. Even if Reidy were also liable to plaintiff, that would not be a defense, in whole or in part, to Farr as against plaintiff. Snyder v. I. Jay Realty Co. , 53 N.J. Super. 336 (App. Div. 1958); Longi v. Raymond-Commerce Corp. , 34 N.J. Super. 593 (App. Div. 1955); Restaino v. Griggs Motor Sales, Inc. , 118 N.J.L. 442 (Sup. Ct. 1937). Respondent Reidy therefore contends in his brief that Farr "has no standing in this court to challenge the propriety of the judgment in favor of defendant Reidy and against plaintiff," citing Mijon v. Acquaire, supra.

The general rule is that one defendant in a tort action may not assert as a ground of appeal error favorable

to a co-defendant, unless that error also prejudiciously implicated appellant's own defense to the plaintiff's action. "[W]here two defendants are charged as joint tort-feasors and one is discharged, even if erroneously, the other is not entitled to urge the error; the question being whether he himself is liable and not whether the other defendant is." Rose v. Squires , 101 N.J.L. 438, 439 (Sup. Ct. 1925), affirmed 102 N.J.L. 449 (E. & A. 1925); Annotation, "Right of defendant to complain, on appellate review, of instructions favoring co-defendant ," 60 A.L.R. 2 d 524-563. Cf. Malinauskas v. Public Service Interstate Transp. Co. , 6 N.J. 269 (1951); Price v. Greenway , 167 F.2d 196, 200 (3 Cir. 1948); Pearlman v. Truppo , 10 N.J. Misc. 477 (Sup. Ct. 1932).

That general rule may be affected in a particular case by cross-claims (such as for contribution) asserted by the one defendant against the other. Bray v. Gross , 16 N.J. 382 (1954); Longi v. Raymond-Commerce Corp., supra; 60 A.L.R. 2 d, supra , at page 557. Cf. Sattelberger v. Telep , 14 N.J. 353 (1954). However, here appellant asserted no claim against Reidy at the trial. Even on this appeal appellant does not say that it was in ...

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