Flanigan v. Guggenheim Smelting Co.

• Decision Date: 29 November 1899
• Citation: 63 N.J.L. 647,44 A. 762
• Court: New Jersey Supreme Court
• Parties: FLANIGAN v. GUGGENHEIM SMELTING CO.

44 A. 762

63 N.J.L. 647

FLANIGAN

v. GUGGENHEIM SMELTING CO.

Court of Errors and Appeals of New Jersey.

Nov. 29, 1899.

(Syllabus by the Court.)

Error to supreme court.

Action by Edward Flanigan against the Guggenheim Smelting Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Willard P. Voorhees and Louis Marshall, for plaintiff in error.

Alan H. Strong, for defendant in error.

ADAMS, J. The plaintiff, a workman, sued his employer in the supreme court to recover damages for personal injury. The ground of action alleged in the declaration is the employer's failure to exercise reasonable care to provide the plaintiff with a ladder safe for use in his work. The plaintiff had a verdict at the Middlesex circuit. The writ of error now brings up the judgment entered thereon. The plaintiff in error, by its bill of exceptions and assignment of errors, insists that the trial judge erred in the admission and exclusion of evidence, in refusing to nonsuit, in refusing to direct a verdict for the defendant, and in its charge.

The motion to nonsuit and the motion to direct a verdict raised the same questions. Some of them are these: Whether the plaintiff had proved negligence on the part of the defendant; whether the case disclosed contributory negligence on the part of the plaintiff; whether the accident that occasioned the injury to the plaintiff was an ordinary risk incident to his employment; whether it was an obvious risk, of which he had notice; and whether the accident was due to the negligence of the fellow servants of the plaintiff, for which the defendant is not liable. These same questions, with some amplification, were presented to the trial judge by the requests to charge, and are now raised by exceptions to the charge, on which error has been assigned.

The defendant further assigned for error that the verdict was against the clear weight of evidence, and that it was excessive. In support of its right to make these assignments, the defendant relies on chapter 139 of the Laws of 1899 (P. L. 1899, p. 323), approved March 24, 1899, which is entitled "A supplement to the act entitled 'An act respecting writs of error' (Revision), approved March twenty-seventh, one thousand eight hundred and seventy-four." This act reads as follows:

"Section 1. Whenever a writ of error shall be issued out of the court of errors and appeals to review a judgment founded upon the verdict of a jury, or upon the finding of a court or referee where the trial was held before a court without a jury, or before a referee to whom the cause was referred by consent of the parties, it shall be lawful for the plaintiff in error to assign for error that the verdict or finding is against the clear weight of evidence and to assign that the verdict or finding is excessive, and on such assignments the grounds so assigned shall be considered by said court as fully as like grounds are considered in the supreme court on a rule to show cause granted by said court why a new trial should not be granted; and if it shall appear that the verdict or finding is against the clear weight of evidence or is excessive, the judgment shall be reversed and such verdict or finding shall be set aside; provided, that in case of an excessive verdict or finding the court may, at its discretion, permit a reduction of the amount.

"Sec. 2. All acts inconsistent with the provisions of this act are hereby repealed, and this act shall take effect immediately."

The writ of error in this case was sued out after the approval of this act. The two assignments above mentioned are therefore regular, if this enactment is valid as applied to this case. It is convenient to consider this question at the outset.

The act declares its purpose, and points out by what procedure that purpose is to be carried out. The purpose, speaking generally, is to obtain in this court a review, not of matter of law, but of matter of fact that has been given in evidence in a civil action that has gone to judgment in a court of inferior jurisdiction. The procedure through which this result is to be reached is by writ of error, and by assignment, not of error in law, but of error as to fact. Speaking specifically of this case, the proposition is that this court, by virtue of this act, under the statutory procedure, must thus review facts given in evidence in a civil action that has gone to judgment founded upon the verdict of a jury in the supreme court. It is evident to any mind acquainted with legal procedure that this act declares a novel purpose, and seeks to secure it through the novel use of an old instrumentality. The purpose is novel, for in such a case the review has hitherto been of matter of law, and never of matter of fact. The use is novel, for the instrumentality is a writ of error, "whose sole ability," in the words of Chief Justice Beasley, "always has been, and is, to bring before the higher court, for review in matter of law, the judgments of inferior jurisdictions." Falkner v. Dorland, 54 N. J. Law, 410, 24 Atl. 403. It is evident, also, that, if this act be valid, its necessary effect will be to deprive the judgments of such inferior jurisdictions of the attribute of finality as to fact. This attribute has characterized such judgments since the earliest age of the common law. They have been final as to fact, though not final as to law. It is now proposed that they shall henceforth be final as to neither. Section 1 of article 6 of the constitution provides that "the judicial power shall be vested in a court of errors and appeals in the last resort in all causes as heretofore; a court for the trial of impeachment; a court of chancery; a prerogative court; a supreme court; circuit courts, and such inferior courts as now exist, and as may be hereafter ordained and established by law; which inferior courts the legislature may alter or abolish, as the public good shall require." It will be admitted that these provisions guaranty the integrity of the constitutional courts, of which the supreme court is one. Whatever powers that court had, whatever jurisdiction that court exercised, at the date of the adoption of the constitution, were by such adoption incorporated into the fundamental law, and insured against destruction or abridgment except through a change in the fundamental law itself. To abolish the court, to alter its organic character, to impair its jurisdiction, to diminish its authority, are beyond legislative power, because that character, jurisdiction, and authority form part of a body of law which, upon wise grounds, has been made immutable by any mere legislative act. For example, it has been held that the legislature cannot constitutionally deprive the supreme court of its exclusive right to issue, as heretofore, a prerogative writ, either by denying the use of such writ, or by creating in another tribunal a co-ordinate authority to employ it. In Traphagen v. Township, 39 N. J. Law, 232, 234, Mr. Justice Van Syckel, in delivering the opinion of the supreme court, which was subsequently adopted by this court, used this language: "By force of section 1 of article 6 of the new constitution, the nature of the supreme court can be altered only by a modification of the constitution itself. Under this constitutional guaranty, the powers which inhered in the court at the formation of the constitution must be unassailable by legislation. Asserting its power by means of its prerogative writs, that power would be impaired to the extent that it is restrained in the use of its appropriate process." The statute that was in that case declared invalid forbade the use of the writ of certiorari to bring up an assessment except within 30 days from the confirmation thereof.

In Flanagan v. Treasurer, 44 N. J. Law, 118, the question was whether the legislature could confer upon the circuit court the exclusive power in certain cases to allow a writ of certiorari. Mr. Justice Van Syckel, in writing the opinion of the supreme court, says: "The power to send these writs cannot be distributed and lodged in other courts at the legislative will. No tribunal of co-ordinate jurisdiction can be erected. The right to invest the circuit courts with the certiorari power necessarily implies the right to confer it upon other inferior jurisdictions. The announcement of the proposition that to the district courts of the state may be committed the right to issue writs of mandamus and quo warranto would create no little surprise. This, it is manifest, would destroy the due subordination of the several courts, and disturb the harmony of the judicial system, which it is the purpose of the constitution to guard and perpetuate. The dignity of the supreme court will fall far below that of the king's bench if exclusive power in this respect is withheld from it. There can be no contraction of the sphere within which the supreme court may dispense its prerogative writs, except by extinguishing the tribunals to which they may be sent. A law is equally without authority whether it in express terms, or by its operation and effect, takes away or diminishes the inherent power of the court. A legislative scheme giving to the circuit court the use of any of these writs cannot be effectuated without violating fundamental principles." The following cases illustrate the same rule: State v. Decue, 31 N. J. Law, 302; State v. Mayor, etc., of Jersey City, 42 N. J. Law, 118; McCullougb v. Circuit Court, 59 N. J. Law, 103, 34 Atl. 1072. In the recent case of State v. Second District Court of Newark (N. J. Sup.) 42 Atl. 842, an act giving an appeal from a district court to the circuit court on matters of law was held to be constitutional, because it effects a mere change in procedure, and does not invade a prerogative of the supreme court. It thus appears that the legislature is without capacity to change the nature of the supreme court, either by direct abridgment of its original power, or by weakening its...