Gilmore v. Kane

• Citation: 60 A. 181,72 N.J.L. 167
• Parties: GILMORE v. KANE et al.
• Decision Date: 15 March 1905
• Court: United States State Supreme Court (New Jersey)

60 A. 181

72 N.J.L. 167

GILMORE

v. KANE et al.

Supreme Court of New Jersey.

March 15, 1905.

(Syllabus by the Court.)

Error to Circuit Court, Essex County.

Action by James Gilmore against Mary Kane and others. Judgment for plaintiff, and defendants bring error. Reversed.

Argued November term, 1904, before GUMMERE, C. J., and GARRISON and GARRETSON, JJ.

Elvin W. Crane, for plaintiffs in error. George E. Clymer, for defendant in error.

PER CURIAM. The judgment for plaintiff brought up by this writ of error must be reversed. The trial court, in charging the jury upon the question of damages, used the following language: 'And the elements there to be taken into account are the fact that the plaintiff was in prison eight days; and, whatever injury he may have suffered to his reputation, his feelings, your verdict ought to be for whatever you think would be a fair compensation, and also whatever would reimburse him for any consequent expenses and losses." The bill of exceptions discloses also the following colloquy: "(The jury retires.) Mr. Harris: I desire to except to what your honor said near the close of the charge as to directing the jury to determine what expenses the plaintiff might have been put to with reference to his defense, and so forth. There was no evidence of any amount. The Court: If there is not any evidence, they will not find anything, of course. Exception allowed. Let it be sealed, and it is sealed accordingly." The feature of the charge to which the court's attention was directed by this exception was entirely too broad. There is no telling what the jury might not have included in its verdict, under this instruction, or from what source it may not have supplied the evidence that was lacking.