Carter v. Public Service Gas Co. , 100 N.J.L. 374 ( 1924 )

The opinion of the court was delivered by

Campbell, J.

This is an appeal from a judgment of non-suit entered at the Essex County Circuit by direction of Judge Mountain.

One Chester G. Ryerson,.an agent of the defendant, was directed by the defendant to go to premises occupied by the appellants and remove a gas meter.

While in the act of so doing, the plaintiff Ella A. Carter sought to prevent the removal of the meter, and the result was an affray, out of which grew charges and counter-charges of assault and battery as between Mrs. Carter and Mr. Ryerson.

Ryerson brought suit against Mrs. Carter in the Orange District Court for damages for the alleged assault and battery upon him, and recovered a judgment of $50. This was set aside by the Supreme Court, and such reversal affirmed by the Court of Errors and Appeals. The cause was then retried in the District Court, resulting in a verdict of six cents in favor of Ryerson. This judgment was then appealed to the Supreme Court and the appeal dismissed, and then an appeal taken to this court which affirmed the judgment of dismissal of the Supreme Court.

During the foregoing proceedings appellants commenced the action in question against the respondent for the assault and battery alleged to have been committed by its servant, Ryerson, upon Mrs. Carter.

The respondent answering, amongst other things, set up the judgment of the Orange District Court, alleged that the doctrine of respondeat superior applied because of the relationship of Ryerson to respondent, and that the judgment of. the District Court was res adjudicada of appellants’ action.

Upon these grounds the learned trial judge directed the entry of the judgment of nonsuit, and in our opinion there was no error in so doing.

That to hold the respondent, Public Service Gas Company, liable it must be upon the principle of respondeat superior is beyond debate.

The suggestion that in order to avoid the effect of the District Court judgment the affray in question was divisible into numerous distinct batteries, and that the suit in question might be based upon one or more thereof, not the basis of the recovery in the District Court, we think, is wholly without merit, but any doubt concerning it is fully and completely put at rest by the stipulation of facts agreed to and used in the trial at Circuit. That portion thereof which is pertinent is as follows:

“* * * that the issue in the said District Court suit involved all and only all the occurrences, matters and things on which the plaintiffs in the above-entitled cause [’being appellants’ cause at Essex Circuit] * * * base their present case against the defendant * * * Public Service Gas Company * *

The judgment of the Orange District Court was res ad judicata of the issues in the Circuit Court action now before us.

The judgment below is affirmed, with costs.

For affirmance — The Chancellor, Chief Justice, Teen-chard, Parker, Minturn, Kalisoh, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, MoGlennon, Kays, JJ. 16.

For reversal — None.