Goldmann, Foley and Fulop. The opinion of the court was delivered by Fulop, J.c.c. (temporarily assigned).
This is an appeal from the action of the trial court in dismissing plaintiffs' complaint with prejudice on motion "on the grounds that the complaint states no valid cause of action."
The parties filed affidavits and the motion was apparently considered as one for summary judgment pursuant to R.R. 4:58. That being the case, the language of our Supreme Court in Frank Rizzo, Inc. v. Alatsas , 27 N.J. 400, 405 (1958), is apposite:
"Review of the propriety of a summary judgment must be engaged in with an eye to a fundamental concept. Such judgment is proper only where the record shows palpably that there is no issue as to any material fact in the case. R.R. 4:58-3. The papers supporting
the motion are to be closely scrutinized; those opposed to it indulgently treated. Doubts must be resolved in favor of the conventional trial. The matter cannot be decided on the affidavits of the parties where inferences for and against the existence of a cause of action or a defense arise therefrom, no matter how strongly they point in one direction or the other. Affidavits are of value only when they demonstrate the absence of a factual dispute as to all elements of the cause of action or the defense."
A motion asserting the defense that the complaint fails to state a claim upon which relief can be granted under R.R. 4:12-2(e) requires a similar liberality in upholding the pleading.
"* * * in dealing with the legal sufficiency of the complaint the plaintiff is entitled to a liberal interpretation of its contents and to the benefits of all of its allegations and the most favorable inferences which may be reasonably drawn from them." Rappaport v. Nichols , 31 N.J. 188 (1959).
The complaint alleges that on February 19, 1959 plaintiff Helen Winkler was injured as a result of the discarding of a wire band, of the type used for bundling newspapers, on the sidewalk in front of premises owned by Rice and Holman in Pennsauken Township, Camden County, New Jersey. Defendant Hartford Accident and Indemnity Company (hereinafter referred to as Hartford) was the insurer of Rice and Holman against liability for such accidents. A representative of this defendant obtained the wire band from the plaintiff. After examination of the wire, this insurer concluded that it was of the kind used by the Courier Post Company which was insured against liability by defendant Aetna Surety and Casualty Company (hereinafter referred to as Aetna). Hartford turned over the wire to Aetna.
On September 24, 1959 plaintiffs' attorneys demanded that Aetna return the wire. The demand was refused. On March 25, 1960 plaintiffs instituted a negligence action in the Superior Court, Law Division, against Rice and Holman, the Courier Post , and two Philadelphia newspapers. Subsequently, on April 7, 1960, the present action was filed by them against Hartford and Aetna for compensatory and
punitive damages for the wrongful withholding of plaintiffs' property.
Plaintiff Helen Winkler alleges "loss and jeopardy of a cause of action against the wrongdoers" by the conversion of the wire. Her husband, the plaintiff Henry C. Winkler, claims that he "did lose and place in jeopardy" his action per ...