Bowem v. Healy's Inc.

• Decision Date: 22 January 1938
• Citation: 197 A. 655
• Parties: BOWEM v. HEALY'S INC. and four other cases.
• Court: New Jersey Supreme Court

197 A. 655

BOWEM

v. HEALY'S INC. and four other cases.

Supreme Court of New Jersey, Cape May County.

Jan. 22, 1938.

COPYRIGHT MATERIAL OMITTED

Actions by Wanda M. Bowen, administratrix ad prosequendum of the estate of Joel Warren Rose, deceased, and by James H. Fisher, by his father and next friend, Harry I. Fisher, and Harry I. Fisher, in his own right, and by Gertrude Norbury, by her father and next friend, Heath Norbury, and Heath Norbury, in his own right, and by Mary Norbury, by her father and next friend, Heath Norbury, and Heath Norbury, in his own right, and by Everett Norbury, by his father and next friend, Heath Norbury, and Heath Norbury, in his own right, against Healy's Incorporated and/or Healy's Special Tours, Inc., for damages sustained in automobile collision. The jury rendered verdicts against the defendant. On rule to show cause why the verdicts should not be nullified and a new trial ordered.

Some of the verdicts reduced and rule discharged.

Samuel T. French, of Camden, and French B. Loveland, of Ocean City, for plaintiffs. Cecil W. Rotzcll, of Camden, Martin J. Greenblatt, of Vineland, and T. Millet Hand, of Cape May, for defendant.

JAYNE, Judge.

The mishap which occasioned this litigation occurred on March 6, 1937. On the afternoon of that day a Chevrolet automobile owned by the Rev. Joel Rose was being driven by Everett Norbury over the highway known as Delsea drive near Malaga in Gloucester county. Mr. Rose, Mary Norbury, Gertrude Norbury, and James Fisher were passengers in the automobile. Their contemplated destination was Woods-town. A motorbus operated by the defendant, Healy's Special Tours, Inc., approached on the intersecting highway known as New Delsea drive. At the junction of these two highways the vehicles came into collision. Bodily injuries and incidental losses resulted from the occurrence of this collision. Mr. Rose suffered fatal injury. The five separate actions, above entitled, were thereafter instituted and all of the alleged causes of action were subsequently adjudicated in the one trial. The jury rendered verdicts against the defendant and in favor of the plaintiffs in each action. Damages were awarded to each plaintiff in the amounts here stated: $10,000 to Wanda M. Bowen, administratrix ad prosequendum of Joel Rose, deceased; $15,000 to James H. Fisher; $1,451 to Harry I. Fisher; $15,000 to Mary Norbury; $500 to Gertrude Norbury; $500 to Everett Norbury; and $2,23670 to Heath Norbury. In each action the defendant has a rule 'to show cause why the verdict should not be nullified and a new trial ordered. The predominant reasons written down by the defendant aver that the verdicts are (1) against the weight of the evidence; (2) contrary to the evidence; and (3) the result of prejudice, passion, and sympathy. Moreover, it is asserted that the awards of damages to the administratrix, to James H. Fisher, and to Mary Norbury are exorbitant. The verdict as rendered in favor of the plaintiff Heath Norbury was formerly criticized, but at the argument all criticism of it was expressly abandoned.

The allowance of a new trial of all of these actions is ardently advocated on behalf of the defendant. It is true that an application for a new trial is addressed to the judicial discretion of the court. Furman v. Applegate, 23 N.J.L. 28, 33; Albert v. Hart, 44 N.J.L. 366; Delaware, Lackawanna & Western Railroad Co. v. Nevelle, 51 N.J.L. 332, 17 A. 836, 19 A. 538; Central Railroad Co. v. Tunison, 55 N.J.L. 561, 27 A. 929; Gaffney v. Illingsworth, 90 N.J.L. 490, 101 A. 243: Robinson v. Payne, 99 N.J.L. 135, 122 A. 882; Gormley v. Gasiorowski, 110 N. J.L. 287, 289, 164 A. 440; Rossman v. Newbon, 112 N.J.L. 261, 170 A. 230; Juliano v. Abeles, 114 N.J.L. 510, 177 A. 666. It is not, however, a boundless and illimitable discretion which can be peremptorily exercised. It is circumscribed by certain definitely established rides. A verdict unsupported by any credible evidence must be set aside, Oakley v. Emmons, 73 N.J.L. 206, 62 A. 996; Northern R. R. Co. v. Demarest, 94 N.J.L. 68, 108 A. 376; a verdict cannot be sustained on a theory not submitted, Hays v. Pennsylvania R. R. Co., 42 N.J.L. 446; Bowlby v. Phillipsburg, 83 N.J.L. 377, 84 A. 1051; Mor-lock v. Kohn, 145 A. 627, 7 N.J.Misc. 381; or on a theory contrary to that upon which the case was submitted to the jury, Sensfelder v. Stokes, 69 N.J.L. 86, 54 A. 517; Cook v. American E. C. & Gunpowder Co., 70 N.J.L. 65, 56 A. 114; Queen v. Jennings, 93 N.J.L. 353, 108 A. 379; or where the verdict plainly exhibits a compromise conclusion relative to the fundamental issue of liability, Juliano v. Abeles, supra. Where, in the consideration of conflicting testimony, the facts found by the jury will sustain the verdict, it should not be set aside merely because, in the opinion of the trial judge, the jury might have found otherwise, Knickerbocker Ice Co. v. Anderson, 31 N.J.L. 333; Queen v. Tennings, supra; Bennett v. Busch, 75 N.J.L. 240. 244, 67 A. 188; Finnegan v. Goerkc Co., 106 N.J.L. 59, 147 A. 442, or merely because the trial judge, if required to determine the facts, would have reached a different conclusion, Faux v. Willett, 69 N.J.L. 52, 54 A. 520; Bowell v. Public Service Corporation, 77 N.J.L. 231, 232, 71 A. 119. The nullification of a verdict is not justified simply because the verdict appears to be discordant with the weight of the evidence. In Cascone v. Hendrickson, 149 A. 337, 338, 8 N.J.Misc. 229, the author of the opinion (per curiam) was constrained to remark, "It seems to be necessary to repeatedly state, that the verdict of a jury will not be set aside upon the ground that it is against the weight of the evidence, unless the verdict clearly evinces that it is the result of mistake, partiality, prejudice or passion." The mere fact that the award of damages is immoderate and excessive does not conclusively indicate that the verdict was the product of sympathy, passion, or prejudice. Gray v. Elmo, 9 N.J.Misc. 1093, 1097, 156 A. 825; Gee v. Moss, 108 N.J.L. 160, 156 A. 458. It is, of course, a circumstance to be considered.

The following quotation taken from the opinion of Nevius, J., in the early case of Doughty v. Somerville & Easton Railroad Co., 22 N.J.L. 495, 497, is not only frequently pertinent but also expositive of the power of the court: "There is no evidence of any misbehavior on the part of the jury, or that they did not attentively listen to the testimony of witnesses and the arguments of counsel during a protracted trial; nor is there any proof of bias, or passion, or prejudice, in their minds, unless it is found in their verdict. This court has the power to set aside this verdict; but we will not exercise that power, unless we arc clearly satisfied that it is wrong, exorbitant, and oppressive, and so much so as to strike the mind of every reasonable man, at once, that the jury, from some cause, have done the defendants gross injustice. We cannot exercise this power rudely because we may think the verdict too high; we cannot convert ourselves into a tribunal of fact; the law has not invested us with that power."

It must always be apprehended that it is pre-eminently the mission of the jury to resolve the credibility of the testimony of the witnesses; to settle the facts and to determine the inferences which ought to be logically and legitimately drawn from them. A verdict founded upon logical and legitimate inferences from facts supported by evidence, is normally conclusive. Smith v. P. Lorillard Co., 67 N.J.L. 361, 51 A. 928.

Where it can be confidently inferred that a verdict has been fabricated by the influences of sympathy, or passion, or prejudice, or founded upon mistake, it must, of course, be annulled.

These rules which characterize the power to grant new trials are well established, yet with the assumption that the exercise of the power is basically discretionary, we, as trial judges, are constantly importuned to weigh the conflicting testimony with exactness and precision and in reality to substitute our judgment for that of the jury. The power is essentially remedial in character. Its exercise is not intended to supplant the appropriate function of the jury.

Acknowledging, then, the legitimate range of the review on an application for a new trial, the evidence introduced at the trial of these actions has been thoughtfully examined and critically considered.

Advancing northwardly on Old Delsea drive a point of divergency is reached at Malaga where the more recently constructed highway locally known as New Delsea drive branches off, curving, northeasterly and the Old Delsea drive extends directly onward. The automobile was moving northerly on Old Delsea drive. The bus approached the junction of the highways on New Delsea drive. The opportunity of each driver to observe the other approaching vehicle was somewhat restricted by neighboring buildings. Both drivers were acquainted with the conjunction of the highways. There was undoubtedly a violent collision between these two vehicles. It is inconceivable that this collision occurred in the absence of negligence. Broadly stated, the jury was called upon to fix the responsibility. The testimony in its cardinal particulars was discordant and conflicting and from it the jury was obliged to harvest the facts.

Everett Norbury, who was at the steering wheel of the automobile, has no remembrance of the circumstances accompanying and surrounding the occurrence of the mishap. The man employed to operate the bus was not driving it. The bus was being operated by Donald Healy, who was at the time returning home from college. Donald is the son of an officer of the defendant company and was evidently authorized to operate any of the defendant's busses whenever he desired. The jury presumably concluded that the bus approached and entered the junction of these highways at an excessive speed; that in undertaking to conveniently pursue the curve of the...