Elvin v. Pub. Serv. Coordinated Transp.

• Decision Date: 10 August 1949
• Docket Number: No. A-315.,A-315.
• Citation: 67 A.2d 889
• Parties: ELVIN v. PUBLIC SERVICE COORDINATED TRANSP. et al.
• Court: New Jersey Superior Court

67 A.2d 889

ELVIN

v.PUBLIC SERVICE COORDINATED TRANSP. et al.

No. A-315.

Superior Court of New JerseyAppellate Division.

Argued June 6, 1949.

Decided Aug. 10, 1949.

Appeal from Superior Court, Law Division.

Action by George A. Elvin, Jr., against Public Service Coordinated Transport and another, for damages to automobile and personal injuries resulting from collision with bus. From a judgment for plaintiff, defendants appeal.

Reversed and new trial granted.

Before Judges McGEEHAN, DONGES and COLIE, JJ.

Carl T. Freggens, Newark, argued the cause for appellants.

Ernest F. Keer, Jr., Montclair, argued the cause for respondent (Boyd, Dodd, Keer & Booth, Montclair, attorneys).

The opinion of the court was delivered by

McGEEHAN, S.J.A.D.

Defendants appeal from a judgment of $1,500 in favor of the plaintiff, entered in the Law Division of the Superior Court. The question presented is whether the trial judge erred in refusing to accept the first verdict returned by the jury; in instructing them to retire and reconsider their verdict; and in accepting the verdict subsequently returned by the jury.

Plaintiff sued to recover for damage to his automobile and for personal injuries resulting from a collision with a bus owned by the defendant Public Service Coordinated Transport and operated by the defendant Jack Breen. The case went to the jury at 2:50 p.m.; thereafter, the jury sent a note to the judge asking whether an eleven-to-one verdict would be acceptable to the court; at 4:50 p.m. the jury was returned to the courtroom and the judge charged the jury that an eleven-to-one verdict in this case would not be a legal verdict; and at 4:53 p.m. the jury retired again to consider its verdict. At 5:27 p.m. the jury returned with the following verdict: ‘We, the jury, find in favor of the plaintiff in the amount of $734.75.’ Before the court clerk recorded the verdict, the court gave the following instructions: ‘Now, stop just a minute, Mr. Clerk. I was just looking at my trial notes here, Mr. Foreman, and I noted that according to the figures of the actual out-of-pocket disbursements, plus this $105 estimated dentist bill, the bulk of which, as I recall it, was agreed to in amount at pretrial conference by the defendant, these sums in dollars and cents aggregate within $50 of the amount of your verdict. So that would mean that your verdict would allow, for all the pain and suffering and for the disabilities arising therefrom, the sum of $50. It is, after all, your verdict. If, of course, you felt there was reasonable ground for disbelief of these pecuniary items, or if you felt there was reasonable ground for disbelief of these personal injuries and disabilities, that is one thing. But I just wondered if you had considered that angle of the matter. I would accordingly like to ask you to reconsider your verdict, naturally, in its entirety, for a brief additional while.’

The jury retired again at 5:30 p.m. The attorney for the defendants moved for a mistrial on the ground that the additional remarks by the court were prejudicial. In denying this motion the court said: ‘Mr. Boyd, I was very careful to tell them to...