Colacurcio Contracting Corp. v. Weiss

• Decision Date: 12 December 1955
• Docket Number: No. A--45,A--45
• Citation: 20 N.J. 258,119 A.2d 449
• Parties: COLACURCIO CONTRACTING CORPORATION, a corporation of New Jersey, Plaintiff-Respondent, v. Ted WEISS, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 258

20 N.J. 258

119 A.2d 449

COLACURCIO CONTRACTING CORPORATION, a corporation of New Jersey, Plaintiff-Respondent, v. Ted WEISS, Defendant-Appellant.

No. A--45.

Supreme Court of New Jersey.

Argued Nov. 14, 1955.

Decided Dec. 12, 1955.

Abraham I. Mayer, Newark, for appellant (Mayer & Mayer, Newark, attorneys).

Felice Castelli, Jersey City, for respondent (Nathan Blumberg, Jersey City, on the brief).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

The issue here is whether a judgment of the Appellate Division unanimously affirming an order of the trial judge setting aside a verdict as against the weight of the evidence presents 'a question arising under the Constitution of * * * this State' appealable to this court of right under Art. VI, § V, par. 1 of the 1947 Constitution, and R.R. 1:2--1(a).

The complaint is for breach of contract to which the defendant counterclaimed. The jury returned a verdict for plaintiff of $544 on the complaint, and, for the defendant, of $5,462.11 on the counterclaim. In setting aside the verdict Judge Proctor stated:

'Gentlemen, I feel this way about this case: I was really shocked when the jury came in and gave the verdict for the defendant. I am fully cognizant in these cases the mere fact the judge does not agree with the verdict of the jury is not any reason for the judge to set aside a jury's verdict. However, the judge is primarily responsible to see that justice is done, and the rules give the judge of the court the power, under the label of mistake, passion, prejudice, or whatever those terms are, to set aside jury verdicts.

'I feel under the evidence before me and before this jury I would be remiss if I didn't set this aside. As I said, I was shocked by the verdict. I didn't expect the plaintiff to get what he was suing for but certainly I never dreamed that the jury would bring in a verdict for the full amount for the defendant on the counterclaim.

'I haven't set many verdicts aside. In fact, I think this will be the second one since last September. Even though I disagree with many verdicts--some verdicts, I don't mean many--I don't feel I should place myself as overlording the jury, except I do have some power in accepting jury verdicts.

'I have less compunction in setting aside this verdict than any I have set aside since I have been on the bench.'

The Appellate Division allowed defendant leave to appeal by order entered April 22, 1955 under R.R. 2:2--3(b), and on September 19, 1955 filed a unanimous Per curiam opinion which has not been published. The ground of the affirmance stated in the opinion is as follows:

'The pattern by which we are to appraise the action of the trial court is disclosed by the decision in Hartpence v. Grouleff, 15 N.J 545, 548 (105 A.2d 514) (1954), and further elucidated by Judge Conford in Gallichio v. Gumina, 35 N.J.Super. 442 (114 A.2d 447) (App.Div.1955).

'It is the present decisional precedent that the action of the trial court in the determination of an application for a new trial should not be disturbed on appeal unless it is clearly and unequivocally manifest that the action of the trial court was without basis in law or fact, or both, with the result that there was a denial of justice under the law.

'We recognize the superior opportunity of the trial judge 'to know and equate all the factors' having pertinency to such an application. We have nonetheless thoughtfully examined the controversial issues implicated in the action and the transcription of the evidence, and we perceive in the record before us a rational basis for the allowance of a new trial.

'The causes of action alleged in the complaint and in the counterclaim are materially interrelated.

'We are not persuaded that the order under review results in a denial of justice under the evidence and the law of the case.'

Defendant filed a notice of appeal to this court without seeking certification. He expressly grounded his claimed right of appeal upon R.R. 1:2--1(a) aforementioned, contending that the cause involves a question under Art. I, par. IX of the 1947 Constitution providing that 'The right of trial by jury shall remain inviolate.'

Defendant has no right of appeal to this court unless the cause involves a substantial rather than merely a colorable question under the cited constitutional provision. Starego v. Soboliski, 11 N.J. 29, 93 A.2d 169 (1952); State v. Pometti, 12 N.J. 446, 97 A.2d 399 (1953); State v. Caprio, 14 N.J. 64, 101 A.2d 9 (1953); State v. Greenberg, 16 N.J. 568, 109 A.2d 669 (1954); State v. De Meo, 20 N.J. 1, 118 A.2d 1 (1955).

The right to trial by jury secured by the Constitution does not immunize a jury verdict from nullification in any case where it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion. The rules of court expressly authorizing the upsetting of the verdict in such case; R.R. 4:61--1(a) in the trial court and R.R. 1:5--3(a) in the appellate courts, do not unconstitutionally invade this basic right. There is no constitutional protection of error so fundamental, Hager v. Weber, 7 N.J. 201, 81 A.2d 155 (1951).

The constitutional provision neither enlarges nor restricts the right to jury trial, but merely preserves it as it existed at common law at the time of the adoption of our original Constitution in 1776. Steiner v. Stein, 2 N.J. 367, 66 A.2d 719 (1949). An injury into the weight of the evidence, either in a civil or a criminal case, governed by the cited standard is not in derogation of the common law right of trial by jury and therefore, as the Constitution secures no greater right, neither is such inquiry in derogation of the Constitution. At the common law the original remedy against a verdict claimed to be false because against the weight of the evidence lay in the writ of attaint directed against the jurors, Holdsworth, History of English Law (3d ed.1923), 333; Bushell's Case, Vaughan 135, 124 Eng.Rep. 1006 (C.P. 1670). Under the process of attaint for a false verdict a jury of 24 re-examined the fact found by the jury of 12; and, if the jury of 24 found the verdict of the jury of 12 was a false verdict, the fact was set right, I.e., the verdict of the 12 was set aside and the verdict of the 24 was substituted in its place and the judgment of the court restored the party to all that he had lost by the false verdict of the twelve. 8 Ill.L.Rev. 287, 301 (1913).

But when the process of attaint became obsolete long before our existence as a nation, Bright v. Eynon, 1 Burr. 390, 393 (1757), it was replaced by judicial control over the jury verdict in the form of a motion for a new trial. At the time of the adoption of our first Constitution the motion was the established common law procedural device for relief...