Gallichio v. Gumina, No. A--189
| Court | New Jersey Superior Court – Appellate Division |
| Writing for the Court | CONFORD |
| Citation | 35 N.J.Super. 442,114 A.2d 447 |
| Parties | Peter GALLICHIO, Plaintiff-Appellant, v. Carmen GUMINA and Thomas Gumina, Defendants-Respondents. . Appellate Division |
| Docket Number | No. A--189 |
| Decision Date | 19 May 1955 |
Page 442
v.
Carmen GUMINA and Thomas Gumina, Defendants-Respondents.
Appellate Division.
Decided May 19, 1955.
[114 A.2d 448]
Page 444
Ernest Gress, New Burnswick, for plaintiff-appellant (Jack Pincus and George J. Shamy, New Brunswick, attorneys).Morris Spritzer, New Brunswick, for defendants-respondents.
Before Judges GOLDMANN, FREUND and CONFORD.
The opinion of the court was delivered by
CONFORD, J.A.D.
On September 12, 1953 plaintiff and the defendant Thomas Gumina were driving their respective automobiles in New Brunswick and there ensued a close escape from a collision between them. There was a running altercation between the two and the utterance of profanities by plaintiff against the defendant. Later that day Thomas and his brother, the defendant Carmen Gumina, went to the plaintiff's home, encountered him on the sidewalk and a scuffle took place. There were conflicting proofs as to who was the aggressor. Plaintiff sustained a fracture of the left wrist. There was treatment by immobilization in a cast for eight weeks and thereafter an operation involving a graft of bone from the leg. The wrist continued in a cast for three months. At the trial, a year after the injury, the wrist was described medically as having a limitation of motion in both directions of about half-range but as being 'a useful wrist' and 'comparatively painless', except for occasional traumatic arthritis. The attending physician said the limitation in motion might improve with time. Plaintiff returned to his job after recovering and was working without reduction in earnings. He had actual damages of about $2,000 in lost earnings and medical bills.
Plaintiff brought this action for assault and battery. After submission of the evidence the trial judge in the Law Division
Page 445
instructed the jury concerning the showing required for recovery of compensatory and punitive damages and directed that if their determination was for the plaintiff the verdict should be in a lump sum for all elements of damages awarded. The verdict was for the plaintiff in the sum of $20,000. On motion by defendant the court granted a new trial unless the plaintiff accepted a reduction of the judgment to $9,000. This amount was stated as arrived at by the allowance of $2,000 for out-of-pocket disbursements and loss of wages; $1,000 for pain and suffering; $5,000 'for permanency'; and $1,000 for punitive and exemplary damages. In a memorandum explaining his action the trial judge stated that the action of the jury 'very definitely shocked the conscience of the court and indicated * * * that the size of the verdict rendered was the result of mistake on the part of the jury.' Plaintiff declined to accept a reduction, and, on motion, was granted leave to appeal the award of a new trial by the Appellate Division.Before considering the merits we notice the contention by defendants that the order under review was not appealable, within the 1953 amendatory addition to R.R. 2:2--3(b): 'This court may also in its discretion permit an appeal from an order granting a new trial solely for the review of legal errors.' It is urged that alleged error in granting a new trial for excessiveness of damages is not 'legal error' within the intent of the rule. In view of our conclusion on the merits we express no opinion in respect to this interesting problem. The subject may be more appropriately dealt with on a motion for leave to appeal in some other matter.
Plaintiff's contentions on the merits are: (1) the verdict of the jury was not clearly and convincingly the result of mistake, and (2) a jury verdict which includes punitive damages may not be reduced.
[114 A.2d 449] I.
Essentially, the determination of a proper case for setting aside a jury verdict reposes in the sound judicial
Page 446
discretion of the trial judge. Hager v. Weber, 7 N.J. 201, 212, 81 A.2d 155 (1951). By amendment of Rule 3:59--1 (now R.R. 4:61--1) in 1951, the Supreme Court evidenced an intent that jury verdicts should be disturbed only with great caution by directing...To continue reading
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Ruth v. Fenchel, No. A--459
...that of the trial judge merely because it evaluates the evidence in a light that would justify the jury verdict. Gallichio v. Gumina, 35 N.J.Super. 442, 446--447, 114 A.2d 447 Accordingly, the determination to grant Mrs. Ruth a new trial as to damages only should not be set aside. There was......
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Cabakov v. Thatcher, No. A--400
...765, section 103; 54 C.J.S., Malicious Prosecution, § 115, p. 1107). See also Gallichio v. Gumina, 35 Page 260 N.J.Super. 442, 448, 114 A.2d 447 (App.Div.1955), and R.R. 4:61--1(a). But as long ago as 1833 our former Supreme Court in Allen v. Craig, supra, 13 N.J.L. at page 301, remarked th......
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Somerville Container Sales v. General Metal Corp., No. A--29
...for an inference that the jury was motivated by partiality, prejudice or mistake in concluding for liability. See Gallichio v. Gumina, 35 N.J.Super. 442, 447, 114 A.2d 447 (App.Div.1955)[120 A.2d 871] . Nor is any such basis advanced in the otherwise well-considered opinion of the trial cou......
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Dahle v. Goodheer, No. A--626
...15 N.J. at page 549, 105 A.2d at page 516. We are sensitive to the Hartpence doctrine--see, for example, Gallichio v. Gumina, 35 N.J.Super. 442, 114 A.2d 447 (App.Div.1955). We do not consider Hartpence as discarding the rule of Hager v. Weber, above; that case was not even mentioned in the......
-
Ruth v. Fenchel, No. A--459
...that of the trial judge merely because it evaluates the evidence in a light that would justify the jury verdict. Gallichio v. Gumina, 35 N.J.Super. 442, 446--447, 114 A.2d 447 Accordingly, the determination to grant Mrs. Ruth a new trial as to damages only should not be set aside. There was......
-
Cabakov v. Thatcher, No. A--400
...765, section 103; 54 C.J.S., Malicious Prosecution, § 115, p. 1107). See also Gallichio v. Gumina, 35 Page 260 N.J.Super. 442, 448, 114 A.2d 447 (App.Div.1955), and R.R. 4:61--1(a). But as long ago as 1833 our former Supreme Court in Allen v. Craig, supra, 13 N.J.L. at page 301, remarked th......
-
Somerville Container Sales v. General Metal Corp., No. A--29
...for an inference that the jury was motivated by partiality, prejudice or mistake in concluding for liability. See Gallichio v. Gumina, 35 N.J.Super. 442, 447, 114 A.2d 447 (App.Div.1955)[120 A.2d 871] . Nor is any such basis advanced in the otherwise well-considered opinion of the trial cou......
-
Dahle v. Goodheer, No. A--626
...15 N.J. at page 549, 105 A.2d at page 516. We are sensitive to the Hartpence doctrine--see, for example, Gallichio v. Gumina, 35 N.J.Super. 442, 114 A.2d 447 (App.Div.1955). We do not consider Hartpence as discarding the rule of Hager v. Weber, above; that case was not even mentioned in the......