For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J. Jacobs, J., concurs in result.
This appeal is from an order of the trial court granting a motion striking compensatory damages as an issue in a new trial which was directed by our former opinion in this cause. 33 N.J. 172 (1960). Defendant's motion was based upon the theory that at the original trial the jury had ascertained by its verdict the amount of compensatory damages regardless of who caused the injury and that plaintiffs, having once tried this issue, could not retry it before another jury.
A short summary of the litigation leading up to this appeal is as follows. Robert McAndrew, an infant, was wounded by a bullet fired by defendant Mularchuk, a reserve police officer of the defendant Borough of Keansburg. His father, plaintiff William F. McAndrew, as guardian ad litem, brought an action against both the policeman and the municipality for personal injuries to Robert. Mr. McAndrew and his wife, plaintiff Frances McAndrew, sought consequential damages as parents of Robert.
Evidence was submitted at the trial from which it could be inferred that the wounding resulted either from a shot
fired directly at the fleeing Robert McAndrew or from one aimed at the ground which ricocheted. Defendant municipality moved for an involuntary dismissal at the end of plaintiffs' case and the trial court reserved decision. At the end of the entire case, the trial court dismissed the action against Keansburg.
The jury returned a verdict against Mularchuk, assessing compensatory damages of $1,500 to Robert, $1,500 to his parents, and punitive damages of $5,000 to Robert.
Among the defendants was Shirley Siegel doing business as the Club Miami. She was sued in the capacity of employer of Mularchuk. A verdict of no cause of action was returned in favor of Shirley Siegel and plaintiffs did not appeal from that portion of the judgment.
On appeal of the dismissal as to Keansburg, the Appellate Division reversed. 56 N.J. Super. 219 (1959). We affirmed the Appellate Division, holding that the proof might sustain the municipality's liability on two theories (33 N.J., at p. 196): the first, "active wrongdoing in authorizing Mularchuk, when on duty, to carry a revolver without any training or adequate training in its handling and use"; or the second, "under the doctrine of respondeat superior for the negligent act of commission of Mularchuk, or his wrongful intentional act in shooting McAndrew, committed during the course and scope of his police duty."
Prior to the new trial, Keansburg moved as stated above and when the trial court granted the motion, plaintiffs moved before the Appellate Division for leave to appeal the interlocutory determination. The motion was denied. When plaintiffs moved similarly before us, we granted the motion. R.R. 1:2-3.
Plaintiffs contend that to bind them on the issue of compensatory damages is to ignore the rule requiring mutuality of estoppel, citing Miller v. Stieglitz, 113 N.J.L. 40, 44-45 (E. & A. 1934). As we understand the authorities, the rule is that an estoppel by judgment is mutual if both litigants are concluded by the judgment -- otherwise it
binds neither. Expressed in another form the estoppel effect of the judgment operates mutually if the person taking advantage of the judgment would have been bound by it had it gone the other way. But it has also been stated that there is "an established and clear exception to the rule to the effect that 'If the defendant's responsibility is necessarily dependent upon the culpability of another, who was the immediate actor and who, in an action against him by the same plaintiff for the same act, has been adjudged not culpable, the defendant may have the benefit of that judgment as an estoppel even though he would not have been bound by it had it been the other way.'" Coca-Cola Co. v. ...