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Theobald v. Kenney''s Suburban House Inc.

Decided: December 5, 1966.

ROBERT THEOBALD, PLAINTIFF-APPELLANT,
v.
KENNEY'S SUBURBAN HOUSE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

[48 NJ Page 204] The trial court held that a claimant who received satisfaction of a judgment against one tortfeasor was thereby barred from suing a co-tortfeasor. Plaintiff

appealed and we certified the cause before argument in the Appellate Division.

I

This is the third appeal before us arising out of an accident which happened this way: A car driven by one Anderson went out of control and came to rest partly on plaintiff's property and partly on the street. Angelos, a police officer of Delaware Township, responded to a call and parked the police car behind Anderson's. Conaty crashed into the rear of the police car, thereby crushing plaintiff who was standing between the police car and Anderson's vehicle.

Plaintiff sued Conaty. Conaty brought in Anderson and Angelos and Angelos' employer, the township, claiming a right of contribution against them as joint tortfeasors. Plaintiff then amended his complaint to name those additional parties as co-defendants.

Prior to trial, plaintiff settled with Anderson for $1,500 and with Conaty for $88,500. The trial against Angelos and the township resulted in a verdict of $65,000. On plaintiff's appeal we found the charge to the jury was not clear with respect to whether the verdict should be in the full amount of plaintiff's damages and hence we ordered a new trial as to damages only, reserving for later consideration the issues concerning the impact of the settlements with Anderson and Conaty upon the amount of the liability of Angelos and his employer. Theobald v. Angelos, 40 N.J. 295 (1963).

Upon the retrial, the jury fixed the total damages at $165,000. With respect to the $1,500 settlement with Anderson, the trial court held that Angelos and the township (they are considered as one for the purpose of contribution) were entitled to a pro tanto credit in the sum of $1,500, rather than a pro rata credit of one-third of the jury verdict, and this because Anderson had been found by the jury to be free of negligence. As to the settlement with Conaty for $88,500, which sum exceeded Conaty's pro rata (50%) share of the verdict of $165,000, the trial court held that the judgment

debtors were entitled only to the pro rata credit. We affirmed. Theobald v. Angelos, 44 N.J. 228 (1965).

The present appeal involves a separate suit brought by plaintiff for the same injuries against Kenney's Suburban House, Inc. (herein Kenney), the operator of a restaurant, on a charge that it too was at fault in that it sold liquor to Conaty when he was intoxicated, in breach of a duty we recognized in Rappaport v. Nichols, 31 N.J. 188 (1959). Kenney contended that plaintiff could not maintain the action because the judgment against Angelos and the township had been paid and satisfied of record. As we have said, the trial court agreed and gave judgment for the defendant.

Plaintiff agrees he cannot obtain more than one full satisfaction for his injuries and losses, but says in substance that their full value is the highest sum awarded against any of the tortfeasors and hence it cannot be known whether he has been fully paid until a verdict is had in this suit against Kenney. We think ...


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