Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
Plaintiff appeals from an order made by the assignment judge in the Law Division, Superior Court, Essex County, denying her application to set a date for the trial of her action against Joseph Calamoneri based upon alleged negligence resulting in an automobile accident. The order contains a finding of fact that the case "was settled on the day it was before Judge Pindar" for trial.
Plaintiff with others was a passenger in a motor vehicle operated by her son-in-law Edward J. Albano. The car was apparently struck in the rear by a vehicle or vehicles involved in a multi-car accident. An action by plaintiff against Albano, defendant Calamoneri and some five others, and another action by Albano against Calamoneri and others, were consolidated for trial in Essex County, and the case came on for trial before Judge Pindar April 28, 1959. Before the commencement of proofs plaintiff's action was settled for $4,000 by agreement between her attorney, Robert C. Gruhin, and Richard H. Hughes, counsel for defendants
W.T. Co. and LeCompte. At the same time plaintiff submitted to voluntary dismissal as against defendants Albano, Guimes and Lowry. The sole factual issue on the motion below and on this appeal concerns the disposition of plaintiff's action as against defendant Calamoneri. That defendant contends, and the assignment judge found to be the fact, that it was settled at the same time, and for the sum of $250. Plaintiff's position is that there was only an offer of $250, and that her counsel did not accept it, but reserved decision on the offer pending the outcome of the trial then to proceed in the Albano action against Calamoneri and others; and that he later advised the latter's insurance carrier that he would not settle for that amount.
The Albano case against Calamoneri and others proceeded to trial at once, Judge Pindar informing the jury that during recess the Jannarone case had been "excluded" from trial. The trial of the action on behalf of Albano, his wife and daughter resulted in jury verdicts and judgments against Calamoneri aggregating $8,000. Nine months later plaintiff brought on a motion to fix a date for trial of her action against defendant Calamoneri, same to be "limited to damages only." The notice of motion was predicated upon the alleged "severance" of plaintiff's action against Calamoneri from the rest of the consolidated case. No order of severance was ever entered.
The parties submitted the litigated factual issue on the motion upon affidavits, and it is not asserted that there was not a full and fair opportunity for plaintiff to present her proofs in that manner. The order under review recites that argument on the motion was had on two separate dates, the last March 11, 1960. All affidavits had been filed by February 19, 1960. Legal memoranda as well as affidavits were submitted to and considered by the assignment judge.
At the outset, we note plaintiff's counsel's admission at oral argument that he was authorized by her to settle her claims against any of the defendants upon the basis of his best judgment at the time. She has not disavowed the
$4,000 settlement against certain defendants or the voluntary dismissal as against others.
An affidavit submitted below, made by Peter W. Thomas, attorney for defendant Calamoneri, states that on April 27 and April 28, 1959 he personally conducted settlement negotiations with Mr. Gruhin "which resulted in a settlement in favor of plaintiff Mary Jannarone in the amount of $250.00 without costs." He wrote Mr. Gruhin May 21, 1959 requesting a release in the amount of $250 together with a stipulation of dismissal, so that he might "close my file," but never received any response. Another opposition affidavit was made by Mr. Hughes, the attorney who had represented those defendants who had settled plaintiff's case against them at the same time for $4,000. His affidavit reads, in part, as follows:
"5. On Friday, May 1, 1959, after the case had been tried and the decision of the jury was known, Robert C. Gruhin, attorney for Mary Jannarone, called me on the telephone and asked me about the results of the trial. When I informed him that defendants LeCompte and Calamoneri had been held jointly liable by the jury, Mr. Gruhin stated that he had been a fool to settle with the attorney for defendant Calamoneri in the sum of $250.00 and that he was going to see to it that his client Mary Jannarone did not sign a Release on behalf of defendant Calamoneri for the sum of $250.00. On Saturday, May 2, 1959, I advised Mr. Thomas of my conversation of May 1st with Mr. Gruhin."
An affidavit by Reginald S. Hughes, investigator for Calamoneri's insurance carrier, states that he was advised during the week of April 27, 1959 by Mr. Thomas that the case of Jannarone v. Calamoneri had been settled for $250; but that subsequently Mr. Gruhin phoned him to ...