Capone v. Norton

• Court: New Jersey Supreme Court
• Writing for the Court: ACKERSON
• Citation: Capone v. Norton, 8 N.J. 54, 83 A.2d 710 (N.J. 1951)
• Decision Date: 15 October 1951
• Docket Number: No. A--4,A--4
• Parties: CAPONE v. NORTON. PANEPINTO v. NORTON. RIDGEWOOD CLEANERS, Inc. v. NORTON.

Page 54

8 N.J. 54

83 A.2d 710

CAPONE v. NORTON.

PANEPINTO v. NORTON.

RIDGEWOOD CLEANERS, Inc. v. NORTON.

No. A--4.

Supreme Court of New Jersey.

Argued Sept. 10, 1951.

Decided Oct. 15, 1951.

Charles S. Barrett, Jr., Newark, argued the cause for the appellant (Lum, Fairlie & Foster, Newark, attorneys).

Louis Santorf, Paterson, argued the cause for the respondents Mary Capone and Peter Panepinto (John A. Masiello, Paterson, attorney for Mary Capone; Benjamin P. Galanti, Lodi, attorney for Peter Panepinto).

Harry Nadell, Paterson, argued the cause for the respondent Ridgewood Cleaners, Inc. (Cole, Morrill & Nadell, Paterson, attorneys).

The opinion of the court was delivered by

ACKERSON, J.

These cases arose out of a collision between an automobile owned by Ridgewood Cleaners, Inc. and a diesel engine of the New York, Susquehanna & Western Railroad Company at a grade crossing in the City of Paterson on June 19, 1948, resulting in the deaths of Harry Capone, driver of the automobile, and Jean Panepinto who was riding with him. Each decedent was 27 years old and unmarried.

Three separate actions were instituted in the Superior Court, Law Division, against Harry K. Norton, trustee of the railroad company, one by Mary Capone, administratrix Ad prosequendum of the estate of Harry Capone, another by Peter Panepinto, administrator Ad prosequendum of the estate of Jean Panepinto, and the third by Ridgewood Cleaners, Inc. for damage to its car. These actions were consolidated for the purpose of trial and resulted in verdicts for the plaintiffs of $28,200 in the Capone case, $42,000 in the Panepinto case and $1,775 in the Ridgewood Cleaners case.

On motions by the defendant for a new trial, the court found that the damages assessed in the death actions were excessive and gave the plaintiffs the alternative of accepting reductions in the amounts of their respective verdicts or a new trial, the reductions being to $24,000 in the Capone case and $34,000 in the Panepinto case. These reductions were accepted and judgments in the reduced amounts were accordingly entered. The motion as to Ridgewood Cleaners, Inc., was denied.

Appeals by the defendant to the Appellate Division of the Superior Court were consolidated for argument and resulted in the affirmance of the judgment in the Ridgewood Cleaners, Inc. case and the reversal of the judgments in the Capone and Panepinto actions solely on the ground that the damages awarded were so excessive as to require a new trial limited to the single issue of damages.

On the petition of the defendant, trustee of the railroad company, and the cross-petition of the plaintiffs in the two death actions, we granted certification to review the judgments so entered in the Appellate Division.

The first point argued by the defendant on his appeal is that the trial court erred in allowing the testimony of witnesses whose names had not been furnished in response to interrogatories served by the defendant upon the plaintiff in each of the death actions pursuant to Rule 3:33. The interrogatories were identical and demanded that the plaintiff in each case 'Furnish the names and addresses of any and all witnesses to the said accident.' The interrogatories were filed February 4, 1949, before defendant made answer to the Capone and Panepinto complaints which were filed January 26, and 25, 1949, respectively. In the Capone case, the plaintiff's answer, filed February 18, 1949, stated: 'I personally do not know the names and addresses of any witnesses to the said accident.' The answer in the Panepinto case, filed March 7, 1949, stated: 'The only witness to the accident that deponent knows of is Louis Friedman Esq. of 64 Hamilton Street Paterson New Jersey,' who, incidentally was not called as a witness at the trial. The record does not reveal that any such interrogatory was served upon the plaintiff, Ridgewood Cleaners, Inc. On February 25, 1949, defendant moved for an order compelling 'a complete answer' to the above quoted interrogatory in the Capone case, which motion was denied.

At the trial of the consolidated causes, which took place early in March, 1950, more than a year after the answers to the foregoing interrogatories had been filed, plaintiffs produced two eye-witnesses to the fatal accident whose names had not been set forth in said answers. One of these was Elizabeth J. Barker and defendant objected to her giving any testimony with reference to the occurrence because her name had not been given in response to the interrogatories and the objection was overruled. No similar objection seems to have been interposed to the testimony of the other witness so produced. Defendant did not contend in the trial court, or in his brief or at the oral argument in this court, that the plaintiffs withheld the names of witnesses known to them or their attorneys at the time the answers to the interrogatories were made or at the time the above mentioned motion for a more complete answer to the specified interrogatory in the Capone case was denied, and no additional interrogatories to elicit any later information on the subject were served at any time throughout the year which elapsed before the trial.

Defendant argued in the trial court, as he does here, that the true interpretation of Rule 3:33 required the plaintiffs upon learning of additional witnesses, either directly or through their attorneys, to supplement their answers to the interrogatories by giving such later information. Rule 3:33, by reference to Rule 3:26--2, permits inquiry as to the 'identity and location of any person having knowledge of relevant facts.' However, we find nothing in Rule 3:33, as it stood at the time of this trial in March 1949, which either expressly or by implication required a party to voluntarily supplement his answers to interrogatories by supplying the names of witnesses thereafter discovered by him or his attorney. Indeed, the rule indicates to the contrary, for it is therein provided that there is no limit to the number of interrogatories which may be served, 'except as justice requires to protect the party from annoyance, expense, embarrassment, or oppression.' Therefore, if a party seeks later information after his first interrogatories have been answered, he is free, within the specifications of the rule, to serve additional interrogatories or bring up the subject at the pretrial conference. The ruling in Evtush v. Hudson Bus Transportation Co., 7 N.J. 167, 81 A.2d 6 (1951), gives no support whatever to the defendant's contention since in that case it appeared the defendant had knowledge of the existence and names of witnesses before answering interrogatories and failed to disclose them. It is to be noted that Rule 3:33 was amended on June 7, 1951, so as to require the filing of supplemental answers to interrogatories under specified conditions, and, although the amendment is not applicable to the present case because adopted subsequent to the trial thereof, nevertheless, it is persuasive of the correctness of our interpretation of the original rule.

Therefore, under the circumstances revealed by the record before us, we find no reversible error in the trial court's rulings hereinabove considered.

We come now to consider the legal propriety of the action of the Appellate Division of the Superior Court in reversing the judgments in the two death actions on the ground that the verdicts therein were excessive, and in remanding them for retrial on the issue of damages only. Both the defendant's appeal and the joint cross-appeal of the plaintiffs challenge different phases of such rulings.

The cross-appeal is directed to only one point, in which it is contended that the trial court's decision that the damages in the death actions were excessive and reducing the amounts thereof to the sums eventually accepted by the plaintiffs therein, being in the exercise of the court's discretionary power, is final unless the court was guilty of an abuse of discretion constituting a shock to reason and to justice, and, since the Appellate Division did not make such a finding, it was error to have reversed the judgments in their reduced amounts and to have remanded the causes for a new trial as to damages only upon any other basis than abuse of discretion, citing in support thereof Nelson v. Eastern Air Lines, Inc., 128 N.J.L. 46, 24 A.2d 371 (E. & A.1941) and Batts v. Joseph Newman, Inc., 3 N.J. 503, 71 A.2d 121 (1950). The complete answer to this contention, however, is to be found in our more recent decision in Hager v. Weber, 7 N.J. 201, 81 A.2d 155, 160 (1951) where practically the same question was presented. There, as here, we were called upon to determine the test...