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Roll v. Timberman

Decided: April 19, 1967.

CHARLES EDWARD ROLL, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF RUTH E. ROLL, DECEASED, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
BRUCE E. TIMBERMAN, TOWNSHIP OF HARRISON AND CORA E. MARTIN, ADMINISTRATRIX OF THE ESTATE OF WESLEY MARTIN, SR., DECEASED, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS. TOWNSHIP OF HARRISON, THIRD-PARTY PLAINTIFF-RESPONDENT AND CROSS-RESPONDENT, V. CORA E. MARTIN, ADMINISTRATRIX OF THE ESTATE OF WESLEY MARTIN, SR., DECEASED, THIRD-PARTY DEFENDANT RESPONDENT AND CROSS-APPELLANT



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.

Collester

This is an appeal by plaintiff Charles Roll, individually and as executor of his wife's estate, from a judgment entered following a jury verdict awarding damages against defendants Cora Martin, administratrix of the estate of Wesley Martin, deceased (hereafter Martin's estate) and Harrison Township. Martin's estate cross-appeals.

Plaintiff brought suit against the above-named defendants and Bruce Timberman to recover for personal injury and property damage he sustained and for the wrongful death of his wife as a result of a collision between his truck and an automobile operated by Timberman which occurred shortly after 10 P.M. on March 14, 1964.

Timberman was driving his car at a high rate of speed in the southbound lane of Richwood Road, a two-lane road in Mantua Township. He was being pursued by a car operated by Wesley Martin, a police officer of Harrison Township. Martin had been trying to catch up with Timberman for two miles before the collision. As Timberman attempted to pass a pickup truck, also going southbound, he cut over into the northbound lane and collided head-on with plaintiff's oncoming motor vehicle. Plaintiff sustained personal injuries, his car was damaged and his wife killed.

In his suit plaintiff charged that Timberman was negligent in the operation of his motor vehicle; that Officer Martin was negligent in driving his car at an excessive rate of speed in his pursuit of Timberman, and that Harrison Township was liable under the doctrine of respondeat superior and for active wrongdoing. The police officer died subsequent to the accident and prior to the institution of suit. His estate was joined as a defendant. Harrison Township brought a third-party action against Martin's estate for indemnification and contribution and Martin's estate cross-claimed against Timberman for the same.

Immediately prior to trial plaintiff settled his claims against Timberman with the latter's insurance carrier and thereafter the trial proceeded against Martin's estate and

Harrison Township. At the trial's conclusion the court dismissed plaintiff's claim that the municipality was guilty of active wrongdoing. The case was sent to the jury on the issue of Martin's negligence and Harrison Township's liability under the doctrine of respondeat superior.

The jury returned a verdict against both defendants, awarding damages of $2,500 to plaintiff individually and $10,000 to him as executor of his wife's estate. The trial judge reduced the verdict by one-half because of plaintiff's settlement with Timberman, and entered judgment in favor of Harrison Township in the amount of $6,250 on its third-party action against Martin's estate.

Plaintiff moved for a new trial as to damages only, or in the alternative for a new trial on all issues, on the grounds that the verdict was inadequate and contrary to the weight of the evidence, and because the trial judge erred in his charge and in striking plaintiff's claim that the municipality was guilty of active wrongdoing. The motion was denied. Plaintiff appealed.

Martin's estate cross-appealed from the judgment adjudging Martin guilty of negligence and liable in damages to plaintiff and to the third-party plaintiff.

At oral argument we concluded that the primary issue in the case was whether the trial judge erred in denying defendants' motions for judgment of involuntary dismissal made at the close of plaintiff's case and upon conclusion of the trial. At our request the parties submitted supplemental briefs relating to the issue.

In support of his contention that Martin, the Harrison Township police officer, was guilty of negligence, plaintiff read into evidence testimony given by Martin at a previous trial of an indictment charging Timberman with the crime of causing ...


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