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Desmond v. Kramer

Decided: July 12, 1967.

THERESA DESMOND, PLAINTIFF,
v.
LEON C. KRAMER, LIONEL KNOLL, SOMERSET BUS CO., INC., A NEW JERSEY CORPORATION AND SOMERSET NOLL CORP., A NEW JERSEY CORPORATION, DEFENDANTS



Fulop, J.s.c. (temporarily assigned).

Fulop

[96 NJSuper Page 97] In August 1960 a bus owned by defendant Somerset Bus Company and operated by its employee was stopped on Route 22 in Mountainside for the purpose of picking up and discharging passengers

for hire. A truck owned by defendant Kramer and operated by defendant Knoll was driven into the rear of the bus while it was so stopped. The impact propelled the bus forward, causing it to collide with a bus owned by defendant Somerset Noll Corp. and leased to defendant Somerset Bus Company.

Plaintiff was a passenger on defendant Somerset Bus Company's bus at the time of the accident. She was born on August 30, 1942. Suit was instituted in August of 1965 shortly before her 23rd birthday.

In 1962 14 passengers started suit for personal injuries. The cases were consolidated and tried as to liability only.

The pleadings in those cases reveal that defendants answered denying liability. Defendants Kramer and Knoll crossclaimed against defendant Somerset Bus for contribution under the Joint Tortfeasors Act (N.J.S. 2A:53A-1 et seq.). The pretrial order indicates that contribution was one of the issues to be decided.

The cases took 11 days to try. Each defendant cross-examined the witnesses for plaintiffs, presented evidence and cross-examined each other's witnesses.

The actions brought against defendant Somerset Noll and the driver of its bus were dismissed at the conclusion of the testimony. A verdict was returned in favor of all plaintiffs and against Kramer, Knoll and Somerset Bus Co. and its driver. The judgment entered on the verdict recited that the only issue left to be tried was damages.

Defendant Somerset and its driver appealed from the verdict. The Appellate Division reversed the trial court and ordered a new trial in an unreported decision dated June 24, 1964.

The pleadings and pretrial order for the second trial reveal that defendants Kramer and Knoll again sought contribution from Somerset. Defendant Somerset objected to the participation of defendants Kramer and Knoll in the second trial on the ground that the latter's liability had been determined in the first trial.

The court requested briefs on the question of whether defendants Kramer and Knoll had a legal right to participate in light of the Joint Tortfeasors Contribution Act. The court decided that defendants Kramer and Knoll had the right to participate, to engage in cross-examination and to present witnesses relating to the liability of defendant Somerset.

The second trial lasted ten days, during which both defendants did in fact cross-examine each other's witnesses with a view to the issue of contribution.

The jury returned a verdict in favor of all plaintiffs and against all defendants. The order for judgment specifically establishes that defendant Somerset's negligence was a "concurring efficient cause of the accident." There was a second appeal, and on January 31, 1966 the Appellate Division affirmed the judgment.

The 14 cases have been or are being disposed of as to damages only, either by trial or settlement.

Plaintiff's allegations and the defendants' answers in this case are the same as those interposed in the earlier cases, including a demand for contribution by defendants Kramer and Knoll against defendant Somerset.

There are two motions before the court. Plaintiff moves for an order denying defendants the right to relitigate the issue of negligence as between themselves and as between themselves and her. Defendants Kramer and Knoll also move for an order denying defendant Somerset the right to relitigate the question of negligence as between it and defendants Kramer and Knoll. The first motion is based on principles of estoppel by judgment and the second seeks support in the doctrine of res judicata. I shall dispose of the second motion first.

Somerset contends that Kramer was not an adverse party in the prior suits and that Somerset is therefore not foreclosed from relitigating the issue of its negligence in this action.

In Restatement, Judgments, ยง 82 (1942), it is said:

"The rendition of a judgment in an action does not conclude parties to the action who are not adversaries under the pleadings as to their rights inter se upon matters which they did not litigate, or ...


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