Flexmir, Inc. v. Lindeman & Co.

• Court: New Jersey Supreme Court
• Writing for the Court: OLIPHANT
• Citation: Flexmir, Inc. v. Lindeman & Co., 86 A.2d 585, 8 N.J. 602 (N.J. 1952)
• Decision Date: 11 February 1952
• Docket Number: No. A--70,A--70
• Parties: FLEXMIR, Inc. v. LINDEMAN & CO.

Page 602

8 N.J. 602

86 A.2d 585

FLEXMIR, Inc. v. LINDEMAN & CO.

No. A--70.

Supreme Court of New Jersey.

Argued Jan. 28, 1952.

Decided Feb. 11, 1952.

Raymond W. Troy, Newark, argued the cause for the plaintiff-appellant (Lum, Fairlie & Foster, Newark, attorneys; Vincent P. Biunno, Newark, on the brief).

Morris M. Schnitzer, Newark, argued the cause for the defendant-appellant (Louis K. Press, Newark, attorney).

The opinion of the court was delivered by

OLIPHANT, J.

This appeal is before the court on plaintiff's petition for certification, Rule 1:5--2(d), to review a judgment of the Appellate Division of the Superior Court reversing a judgment of the Law Division of that court entered as the result of a jury verdict in favor of the plaintiff in the sum of $9,269.60.

This case was previously before us, 4 N.J. 509, 73 A.2d 243 (1950), and as the facts are fully set forth in that opinion and also that of the Appellate Division, 14 N.J.Super. 379, 82 A.2d 450 (1951), we do not deem a review of them necessary here except to say that the suit is to recover damages resulting from an explosion and fire in plaintiff's plant alleged to have been caused by the use of an unsuitable grade of fuel oil furnished by the defendant in plaintiff's furnace. The complaint charges negligence and a breach of an implied warranty.

By our former opinion we reversed the judgment of the trial court entered on defendant's motion for dismissal and remanded the cause for a trial De novo. In that case we held there 'were questions for a jury and not for the court.' (4 N.J. 509, 73 A.2d 245.) We also said that the trial judge had erred in ruling that the plaintiff was required to negative the possibility that there might have been other causes for the fire and explosion, that 'The test is one of probability. The evidence must be such as to justify and inference of probability as distinguished from mere possibility.' 4 N.J. 509, 73 A.2d 245 (1950).

The only question presented to the Appellate Division was whether or not the verdict of the jury was contrary to the weight of the evidence. That court concluded it was improbable if not impossible for the oil furnished by the defendant to have caused the damage complained of and concluded its opinion by stating: 'In consequence of the inadequacy of the plaintiff's proofs to which we have specifically referred, we conclude that the verdict of the jury was not sufficiently supported by the evidence and that the judgment under review should be set aside. Hager v. Weber, 7 N.J. 201, 81 A.2d 155 (14 N.J.Super. 379, 82 A.2d 452) (1951).'

While a number of points are briefed and were argued on this appeal the principal question about which the case revolves is whether or not the verdict of the jury has support in the evidence or whether it is so contrary to the weight of the evidence as to give rise to the inescapable conclusion that it was the result of mistake, passion, prejudice or partiality.

The appeal in this case was argued in the Appellate Division June 18, 1951, and was decided July 6, 1951, shortly after the amendment of Rule 1:2--20(a) which was effective June 7, 1951. It is immaterial that the...