Freschi v. Mason

• Decision Date: 19 October 1931
• Docket Number: No. 2.,2.
• Citation: 156 A. 758
• Parties: FRESCHI v. MASON.
• Court: New Jersey Supreme Court

156 A. 758

FRESCHI

v. MASON.

No. 2.

Court of Errors and Appeals of New Jersey.

Oct. 19, 1931.

Syllabus by the Court.

Granting a party a rule to show cause why a new trial should not be granted is a bar against him to taking or prosecuting an appeal, except on points expressly reserved in said rule.

Syllabus by the Court.

Exceptions reserved in a rule to show cause, but argued and determined on the return of the rule, are deemed waived or abandoned on appeal.

Syllabus by the Court.

Argument and determination of the reason on rule to show cause that the verdict was against the weight of evidence is a bar to the grounds of appeal by the party holding the rule that the trial court should have taken the ease from the jury by a nonsuit or direction.

Syllabus by the Court.

Contributory negligence of necessity connotes primary negligence of the defendant; and, where there is no actionable negligence for which the defendant is responsible, the question whether contributory negligence exists is immaterial.

Syllabus by the Court.

Exceptions to the charge of the trial court considered, and held, either that the parts of the charge properly excepted to were correct, or that no error had been adequately pointed out by the exception.

Appeal from Supreme Court.

Action by Sylvester Freschi against Abraham B. Mason. Judgment for the plaintiff, after the defendant's rule to show cause was discharged (156 A. 757), and defendant appeals.

Judgment affirmed.

Russell E. Watson, of New Brunswick, for appellant.

Burlew & Currie, of Matawan, for respondent.

PARKER, J.

This cause was reviewed in the Supreme Court on a rule to show cause. 156 A. 757. The general facts relating to the origin of the case and the result at the trial are correctly stated in the introductory portion of the Supreme Court per curiam, which reads as follows:

"The plaintiff, at the time of the injury that gave rise to this suit, was a regular employee of the Metallurgical and Chemical Co., Inc. at its plant in Matawan. That Company contracted with the Fuller Construction Company to build an additional building of steel frame construction, sheathed and roofed with corrugated iron, and connecting with an existing building. The frame was up, and work on the roof was in progress. At the same time, plaintiff was engaged under direction of his foreman, in laying the concrete foundation for a piece of machinery under, or nearly under, a part of the incomplete roof where workmen of the defendant Mason were at work; and with matters in that situation plaintiff was struck on the head by a heavy metal object which he claimed had been negligently allowed to fall from the roof by some workman of the defendant. Said defendant was a subcontractor of the Fuller Construction Co. for the roofing of the new building. Plaintiff brought suit against defendant, and after two trials resulting in a disagreement of the jury, and a third in which a juror was withdrawn to permit an amendment of the complaint, the jury, on a fourth presentation of the evidence returned a verdict in his favor of $20,000."

There is a rigid rule of practice, which was crystallized into a statute, that the granting of a rule to show cause shall be a waiver of the bill of exceptions except on points expressly reserved in said rule. Practice Act of 1903, § 213 (3 Comp. St. 1910, p. 4118, § 213). This section was repealed in 1912 (P. L. pages 383, 384, c. 231, § 34 [Comp. St. Supp. § 163—310]), but was revived in the present rule 129 of the Supreme Court, which reads: "Granting to a party a rule to show cause why a new trial shall not be granted shall be a bar against him to taking or prosecuting an appeal, except on points expressly reserved in said rule." See Haden v. Bamford Bros., 74 N. J. Law, 847, 67 A. 107.

This familiar principle is here stated, because the only exceptions reserved in the rule to show cause were the following: (1) To the refusal to nonsuit; (2) To the refusal to direct a verdict for the defendant; (3) To the charge of the court. Consequently, the point made here, that the court erred in permitting the reading of certain depositions over the objection of the defendant, is unavailable to the appellant, as is also the further point that the court refused certain request to charge.

There is another rule of appellate practice, which is that a party holding a rule to show cause and arguing alleged errors of law thereunder will not be permitted to renew his argument to such points on appeal. And for this reason also the claim that the trial court erred in admitting the said depositions and in refusing the requests to charge are unavailable here because we find both points were argued in the Supreme Court under the rule.

The principle last stated also applies to two other grounds of appeal urged here, viz., that the court erred in refusing to nonsuit and erred in refusing to direct a verdict. Those grounds, it is true, were reserved in the rule to show cause, but it is now settled by a whole line of recent cases that where, as in this case, the verdict has been attached on rule to show cause as against the weight of evidence, the consideration and disposition of that claim by the Supreme Court on the rule to show cause covers the ground of a motion to nonsuit and motion to direct and operates as a bar to the argument of such grounds of appeal. Catterall v. Otis Elevator Company, 103 N. J. Law, 381, 135 A. 865; Boniewsky v. Polish Home, 103 N. J. Law, 323, 136 A. 741; Noonan v. Great Atlantic & Pacific Tea Company, 104 N. J. Law, 136, 139 A. 9, 56 A. L. R. 590; Cleaves v. Yeskel, 104 N. J. Law, 497, 141 A. 814; Overend v. Kiernan, 105 N. J. Law, 112, 143 A. 357.

It follows from what has been said that the only exceptions now available to the appellant are those relating to the charge of the court as actually delivered; and these we proceed to consider.

For the most part they are too lengthy to quote in full, particularly as the substance of the instructions and the objections to them may be shortly stated.

(a) In the course of the evidence it appeared that plaintiff had been receiving compensation from his employer under the Workmen's Compensation Act, and the judge pointed out that that fact, in view of the statute (P. L. 1919, at p. 212, § 23 (f), Comp. St. Supp. § **236—32 (f), had no legal bearing on the amount of recovery by the employee against a third party for negligence, and remarked (and this is the passage criticized) that he had only allowed this phase of the case to come in because defendant's counsel had suggested there was no merit to the claim, and the real motive of the suit was to enable plaintiff's employer to get back money paid plaintiff under the Compensation Act. The criticism now is that the testimony about the compensation proceedings also tended to show that plaintiff had a "compensation neurosis," and consequently had a bearing on the actual extent of injury and amount of damage. But, assuming that as a fact, the instruction in question was in no way erroneous. The court, in the passage excepted to and assigned as error, was merely explaining the theory on which he had allowed this testimony to come in; and probably would have been justified in excluding it altogether. Gilbert v. Junior Trucking Corporation, 104 N. J. Law, 608, 141 A. 776.

(b) The next exception attacks a passage in the charge in which the judge gave as an illustration of res ipsa loquitur the falling of a heavy object from the top of a building upon a passerby in the street. The objection is that plaintiff was not in a street, but in the building inclosure; but we fail to see what legal error was committed by the court, for in each case the injured party was where he had a right to be, saving the questions of contributory negligence and assumption of risk,...