Baxter v. Fairmont Food Co.

• Citation: 74 N.J. 588,379 A.2d 225
• Parties: Robert BAXTER, Plaintiff-Respondent, v. FAIRMONT FOOD CO., et al., Defendants-Appellants.
• Decision Date: 21 October 1977
• Court: United States State Supreme Court (New Jersey)

Page 588

74 N.J. 588

379 A.2d 225

Robert BAXTER, Plaintiff-Respondent, v. FAIRMONT FOOD CO., et al., Defendants-Appellants.

Supreme Court of New Jersey.

Argued May 24, 1977.

Decided Oct. 21, 1977.

Richard D. Bennett, West Orange, for defendant-appellant Fairmont Food Co. (Bennett & Bennett, West Orange, attorneys).

Francis Sorin, Jersey City, for plaintiff-respondent.

The opinion of the court was delivered by

HUGHES, C. J.

This appeal projects again the sometimes troublesome question of the extent and nature of judicial power, whether that of a trial or appellate court, to overrule a jury verdict, not on the basis of trial error on questions of law, but because of claimed discordance between the verdict and the evidence on which it was based.

We consider here a ruling by the Appellate Division which (1) vacated a remittitur as to damages, ordered by the trial court and accepted by plaintiff, and (2) reinstated the jury verdict fixing damages at $300,000. We believe that Appellate Division action was eminently correct, and so we affirm its decision.

The issue arose in this way. Plaintiff, a motorcyclist, sustained severe injuries in an intersectional collision with defendants' truck, allegedly operated illegally and negligently through a red light. The first trial resulted in a verdict for the plaintiff, found, on motion, to be so manifestly inadequate as to represent a compromise verdict; hence a new trial as to liability and damages was ordered. At the second trial plaintiff again prevailed as to liability and was awarded damages of $300,000. Defendant then moved for a new trial as to both liability and damages or, in the alternative, for a remittitur of damages. While upholding the verdict as to liability, the trial court reduced the award to $150,000 with the proviso that if plaintiff, in writing, accepted the reduced amount within ten days, defendant's motion for new trial would be denied. If plaintiff did not accept the reduced judgment, the motion for a new trial would be deemed granted, limited to the issue of damages. Plaintiff accepted the reduced judgment. Defendant filed an appeal from the judgment as reduced. Plaintiff then cross-appealed from the remittitur ordered by the trial court.

The Appellate Division found no merit in any of the defendant's contentions as to trial error. However, on plaintiff's cross-appeal, after reviewing the extent of his very serious injuries, it concluded that the trial court had mistakenly exercised its discretion in granting defendant's motion for a remittitur and in so doing had improperly invaded the province of the jury. Accordingly, as noted, it vacated the remittitur and reinstated the jury verdict fixing damages at $300,000. This Court granted defendant's petition for certification solely as to the issue of the validity of the Appellate Division's reinstatement of the jury verdict as to damages.

Simplification of the issue might be aided by stating and separating factors on which there is no dispute. We have no misgivings about the remittitur practice, long in effect in this jurisdiction, and increasingly valuable to the modern administration of justice, confronted as the courts are today by unprecedented litigation caseloads. ¹ As urged by Justice Proctor in Fritsche v. Westinghouse Electric Corp., 55 N.J. 322, 330-31, 261 A.2d 657 (1970), the practice should be encouraged at both trial and appellate levels to avoid the unnecessary expense and delay of new trial. Moreover, plaintiff's initial acceptance of the remittitur is not significant. Had defendant bowed to its conditional mandate, that acceptance would have been effective. But once it was challenged by defendant's appeal, the law properly reverts the parties to "square one" and no significance, as though by some sort of quasi-admission, attaches to the remittitur acceptance by plaintiff. Mulkerin v. Somerset Tire Service, Inc., 110 N.J.Super. 173, 264 A.2d 748 (App.Div.1970).

Similarly, the norms dealing with trial court supervision of jury response, specifically its review of a jury's assessment of damages, are clearly set forth in Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 276 A.2d 861 (1971). Recently, we had occasion to restate the test to be applied by a trial court where a remittitur of the jury award of damages is sought. In essence it is that a trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock his conscience and to convince him that to sustain the award would be manifestly unjust. Sweeney v. Pruyne, 67 N.J. 314, 315, 338 A.2d 193 (1975). Put in another way, the judge cannot validly intrude unless "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). Except in one respect to be mentioned later, the basic criteria for appellate court intervention are not significantly different. One such was simply phrased for this Court by Justice Hall (in reversing a trial court denial of a new trial motion) as follows:

We are satisfied beyond any doubt that the verdict was against the weight of the evidence so as to constitute a miscarriage of justice * * * . (Dolson v. Anastasia, 55 N.J. 2, 12, 258 A.2d 706, 711 (1969)).

As pertaining to damage awards, Justice Proctor cautioned in Fritsche that "(v)erdicts should be upset for excessiveness only in clear cases." 55 N.J. at 330, 261 A.2d at 661.

While sometimes difficult of application to a given factual base, these rules recognize that all judges, whether trial or appellate, are human and that the judgment of each is inevitably affected by subjective prejudices or predispositions relating to properties or specific tendencies of the individual mind, as distinguished from general or universal experience. These natural subjective inclinations derive from the particular background or experience of the individual judge, whether from tenure on the bench in examining or recalling other cases, from previous activity in law practice in diverse fields or, for that matter, from any human experience, such as a youthful background of poverty or wealth or the like. Such individuality of approach extends to course to the field of admeasuring damages flowing from injuries caused by negligence, as in the present case, or other wrong. It is for the merging of such individualized propensities of mind ² into an amalgam of common judicial experience related to the doing of justice that judges are admonished to resist the natural temptation to substitute their judgment for that of the jury. See Dolson v. Anastasia, supra, 55 N.J. at 6, 258 A.2d 706; Mulkerin v. Somerset Tire Service, Inc., supra, 110 N.J.Super. at 178, 264 A.2d 748; Andryishyn v. Ballinger, 61 N.J.Super. 386, 395, 160 A.2d 867 (App.Div.), certif. den., 33 N.J.120, 162 A.2d 343 (1960).

The judgment of the initial factfinder then, whether it be a jury, as here, or a judge as in a non-jury case (see Leimgruber v. Claridge Assoc., 73 N.J. 450, 455-56, 375 A.2d 652 (1977); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84, 323 A.2d 495 (1974); State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964); National Institute for Rehab. Engineering v. Fenton, 146 N.J.Super. 434, 436, 370 A.2d 35 (App.Div.1976); Greenfield v. Dusseault, 60 N.J.Super. 436, 444, 159 A.2d 433 (App.Div.), aff'd o. b., 33 N.J. 78, 161 A.2d 475 (1960)) is entitled to very considerable respect. It should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice. The process of "weighing" the evidence is not to encourage the judge to "evaluate the evidence as would a jury to ascertain in whose favor the evidence preponderates" (Kulbacki v. Sobchinsky, 38 N.J. 435, 455, 185 A.2d 835, 847 (1962) (Haneman, J., concurring) and on that basis to decide upon disruption of the jury's finding. "(T)he judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror." Dolson v. Anastasia, supra, 55 N.J. at 6, 258 A.2d at 708. Nevertheless, the process of evidence evaluation called "weighing" is not "a pro forma exercise, but calls for a high degree of conscientious effort and diligent scrutiny. The object is to correct clear error or mistake by the jury." Id. It is only upon the predicate of a determination that there has been a manifest miscarriage of justice, that corrective judicial action is warranted.

The comparative strictness of these rules is historic in nature, with roots deep in the common law. In the American system of justice the presumption of correctness of a verdict by a jury has behind it the wisdom of centuries of common law merged into our constitutional framework. Of course such verdict is not sacrosanct and can never survive if it amounts, manifestly, to a miscarriage of justice. The resolution of this latter question is reposed in the courts. Respect for our constitutional system requires that this obligation be approached, in all contingencies, with utmost circumspection, lest the courts intrude upon responsibilities which have traditionally, intentionally and constitutionally been vested in a jury of citizens.

To us all of this means that a trial judge, before acting in derogation of the jury's fixing of damages, must be convinced, and that very clearly, of something like this: "This verdict is terribly wrong having canvassed the record I reach this conclusion because of substantive factors in the totality of the evidence (e. g., the incredible testimony offered by a party, the overwhelming weight of the evidence with respect to a certain fact, the failure of a party to produce any countervailing medical or other expert...