Dalton v. Gesser

• Decision Date: 26 January 1962
• Docket Number: No. A--817,A--817
• Citation: 72 N.J.Super. 100,178 A.2d 64
• Parties: Harold DALTON, Plaintiff-Appellant, v. Sarah GESSER and Anthony Carpenter, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 100

72 N.J.Super. 100

178 A.2d 64

Harold DALTON, Plaintiff-Appellant, v. Sarah GESSER and Anthony Carpenter, Defendants-Respondents.

No. A--817.

Superior Court of New Jersey Appellate Division.

Argued Dec. 11, 1961.

Decided Jan. 26, 1962.

Francis Sorin, Jersey City, for plaintiff-appellant.

Edward DeSevo, Jersey City, for respondent Sarah Gesser (DeSevo & Cerutti, Jersey City, attorneys; Edward DeSevo, Jersey City, of counsel).

John E. Keale, Jersey City, for respondent Anthony Carpenter (Beggans & Keale, Jersey City, attorneys; John E. Keale, Jersey City, of counsel; Robert E. Tarleton, Jersey City, on the brief).

Before Judges CONFORD, FREUND and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.S.C. (temporarily assigned).

Plaintiff appeals from a jury verdict of no cause for action and from the subsequent denial of his motion for a new trial.

The complaint sounded in negligence, the facts being substantially as follows: On April 13, 1959, at about 3:15 A.M., plaintiff was riding as a passenger in an automobile being driven by defendant Carpenter on Bergenline Avenue, Union City. At the intersection of 41st Street the car was involved in a collision with that of the codefendant Gesser. Plaintiff gave the following testimony as to the injuries he sustained as a result of the accident: He was rendered dizzy and temporarily unconscious, and received emergency treatment in the North Hudson Hospital. Sent home thereafter, he continued to suffer from pain and headaches. At the end of some three or four weeks without substantial improvement he consulted Dr. Leo Levitov, who inaugurated a series of treatments which lasted until March 31, 1960. However, he continued to suffer from headaches on the left side of his head, the forehead and the back of his head from which he had never previously suffered. He also suffered from hour-long buzzings in the left ear. He had a history of previous injuries in the region of the back, the left hand, the right knee and the chest, and had undergone a head operation in 1957 for a right subdural hematoma. At about the time of the operation he had suffered what was described as a 'stroke,' with a resultant paralysis to his left side for a time. Prior to his hospital confinement he had had headaches only in his temples and suffered from short periods of buzzing in his ear. After his hospitalization he had no headaches and was in fairly good condition although somewhat weak.

Dr. Levitov started to treat the plaintiff on May 11, 1959. He found 'a cerebral concussion which was superimposed on a previous injury to the brain,' healing contusions of the left ear, pain in the left neck, shakiness, and pain in the left temple. His diagnosis included, in addition to the cerebral concussion, a sprain of the neck, and contusions and lacerations of the ear. On April 28, 1961, upon re-examination of the plaintiff, he found him still complaining of headaches of the frontal variety radiating around the left parietal region, weakness of the leg and shakiness of the body. In response to a hypothetical question which included plaintiff's previous injuries and hospital confinements, he opined that there was causal relation between the accident and the cerebral concussion from which he found the plaintiff suffering. He concluded that the condition was permanent.

Various trial errors and errors in the charge are asserted as grounds for reversal. Plaintiff also argues that the verdict of no cause for action was contrary to the weight of the evidence and that his motion for a new trial should have been granted.

It is first urged that the trial judge erroneously permitted the attorney for the defendant Gesser to advise the jury that he was appearing for the Unsatisfied Claim and Judgment Fund. At the trial of the case defendant Gesser did not appear, the court being advised that her whereabouts were unknown. Thereupon the following transpired out of the presence of the jury:

'The Court: In the light of what the court said to the jury the record should show that it is proposed that because the defendant Sarah Gesser, although an answer has been filed in her behalf, will not appear and that her present whereabouts is unknown. In the absence of insurance protection of that defendant, Mr. DeSevo appears for the Fund.

Mr. DeSevo: Does your Honor want the complete technical name known as the Unsatisfied Claim and Judgment Fund of the State of New Jersey?

The Court: In view of that situation, Mr. DeSevo asks leave in his opening to refer to the probability that the defendant Sarah Gesser will not appear and that his interest in appearing is in behalf of said Fund.

* * * the court feels that it should be granted, limited to the manner stated and not for further reference in the examination of witnesses or in the summation at the end of the case.'

When the plaintiff objected, the following colloquy took place:

'Mr. Sorin: May I state as the reason for my objection that by permitting the attorney for Mrs. Gesser or the Fund to state that the Fund is the principal in this matter creates the same sort of prejudice that a reference either to insurance or lack of insurance might well instill in the minds of the jury and I feel that my objection goes to the prejudice arising out of what I feel is a collateral matter and not relevant to the trial of the case. I have indicated I would bind myself becauses I think it would be fair to not comment upon the absence of the defendant so that it would not emphasize the absence to the jury.

The Court: The difficulty with that, Mr. Sorin, is that the absence of the defendant would be obvious and there must be some limited explanation rather than be left to the bewilderment of the jury the activity in her behalf.

The court feels that your objection, as stated within the exercise of my discretion to control the trial of this case with justice to all parties, is not substantial but it may be noted.'

Following this, the jury was advised by the attorney for the defendant Gesser, in his opening to the jury, that he was appearing for the Unsatisfied Claim and Judgment Fund of the State of New Jersey.

It is urged by defendant that the statement in question was necessary to protect the Fund against fraud and abuse, citing Myers v. Cave, 55 N.J.Super. 185, 150 A.2d 269 (App.Div.1959). The case cited is not apposite. Neither the reason now urged by the defendant nor the reason relied upon by the court, i.e., that it would relieve the jury's 'bewilderment,' justified the furnishing of this prejudicial piece of information to the jury. The issue was one of negligence, the remedy being the award of money damages in the event the defendant was found responsible. It made no difference as to the defendant's liability whether she was insured, whether the Fund was obligated to pay the judgment, or whether she would have been required to pay the judgment herself. By permitting counsel for the defendant Gesser to advise the jury that he appered for the Unsatisfied Claim and Judgment Fund, the jury was indirectly being advised that (1) Gesser was not insured, and (2) any verdict rendered against Gesser would be paid out of a public fund.

Whether done directly or indirectly, it would have been improper to advise the jury that the defendant was insured. Sutton v. Bell, 79 N.J.L. 507, 77 A. 42 (E. & A.1910); Patterson v. Surpless, 107 N.J.L. 305, 151 A. 754 (E. & A.1930); Hansson v. Catalytic Construction Co., 43 N.J.Super. 23, 29, 127 A.2d 431 (App.Div.1956). It would have been likewise improper to permit counsel for the defendant by his remarks to indicate to the jury the absence of insurance. Haid v. Loderstedt, 45 N.J.Super. 547, 133 A.2d 655 (App.Div.1957).

To permit the defendant to accomplish the same result in the manner here indicated constituted prejudicial error, especially in the context of the case here presented, where there were no precautionary instructions in the charge.

The Unsatisfied Claim and Judgment Fund Act, N.J.S.A. 39:6--61 et seq., was not enacted to establish liability insurance for uninsured drivers. Lindsay v. Boles, 61 N.J.Super. 516, 161 A.2d 324 (Cty.Ct.1960). The obligation of the Fund to pay does not become absolute until the rendition of a judgment and the entry of an order certifying compliance by the plaintiff with the statutory requirements and authorizing payment. The statute puts the Fund in the shoes of the defendant and makes it subject to whatever weaknesses may be inherent in the defendant's position, including the risk that the defendant may not appear at the trial. To permit counsel retained by the Fund to advise the jury in the manner here complained of, serves to introduce irrelevant considerations into the decision of the matter, and this regardless of the familiarity of the jury with the operation of the Fund. The jury is charged with the task of deciding on the merits the factual issues committed to it. Anything tending to detract from the proper performance of this obligation is to be avoided.

It is next charged that the trial court improperly limited the scope of plaintiff's medical proofs. As noted above, plaintiff had a prior medical history involving a head operation and injuries to the left hand, back, right knee and the chest. His prior hospital confinements included stays in Jersey City Medical Center and St. Mary's Hospital. In the former, he had been operated on for a right subdural hemorrhage. He subsequently had a relapse which resulted in his confinement in the latter hospital for an additional period. He testified, in substance, that the only time he had suffered from headaches prior to the accident was previous to his 1957 operation in the Medical Center.

It is not altogether clear whether Dr. Levitov's testimony that plaintiff had a cerebral concussion 'superimposed upon' a previous brain injury indicated an opinion that the concussion either aggravated a previous condition or concurred...