Hager v. Weber

• Decision Date: 21 May 1951
• Docket Number: No. A--57,A--57
• Citation: 7 N.J. 201,81 A.2d 155
• Parties: HAGER v. WEBER.
• Court: New Jersey Supreme Court

Page 201

7 N.J. 201

81 A.2d 155

HAGER v. WEBER.

No. A--57.

Supreme Court of New Jersey.

Argued Dec. 11, 1950.

Reargued April 16, 1951.

Decided May 21, 1951.

Francis M. Seaman, Perth Amboy, argued the cause for appellant.

John C. Stockel, Perth Amboy, argued the cause for respondent.

The opinion of the court was delivered by

HEHER, J.

There was a judgment of $6,500 for plaintiff on a jury verdict returned in the Middlesex County Court in an action in tort for negligence; and on defendant's appeal the Appellate Division of the Superior Court found that the verdict was 'clearly excessive' and accordingly reduced the award to $3,500, with direction for a new trial as to damages if plaintiff should refuse consent to the reduction. The trial judge had denied a motion for a new trial on the asserted ground that 'the judgment is against the weight of the evidence and is excessive and resulted from mistake, passion or prejudice.' Only the quantum of the verdict was under attack in the Appellate Division.

We certified the cause for appeal on plaintiff's motion.

It was argued at the outset that Rule 3:59--5 'does not abolish the trial court's discretionary power to pass upon a jury's verdict on motion for a new trial,' and the action of the trial judge in that regard is unassailable except for a 'plain abuse of discretion,' in keeping with the doctrine of Nelson v. Eastern Air Lines, Inc. 128 N.J.L. 46, 24 A.2d 371 (E. & A.1942), followed by this Court in Batts v. Joseph Newman, Inc., 3 N.J. 503, 71 A.2d 121 (1950); that, so assessed, the refusal of a new trial here is unexceptionable; and that, at all events, the Appellate Division did not apply the principle of Rule 1:2--20(a), made applicable to the Appellate Division by Rule 4:2--6, providing, Inter alia, that on a review of any cause involving issues of fact determined by the verdict of a jury, 'the verdict, if contrary to the weight of the evidence, shall be set aside.' After consideration of these issues, we directed argument of the question of the constitutional sufficiency of Rule 1:2--20(a), cited supra; and the cause came on for reargument in due course.

Plaintiff now contends that the particular provision of the rule would enlarge the jurisdiction granted to this Court and the Appellate Division by the Constitution of 1947, and as well impair 'the jurisdiction of trial courts by depriving the judgments of such inferior jurisdictions of the attribute of finality as to fact,' and it therefore constitutes an excess of constitutional power. The cases of Central Railroad Co. v. Tunison, 55 N.J.L. 561, 27 A. 929 (E. & A.1893), and Flanigan v. Guggenheim Smelting Co., 63 N.J.L. 647, 44 A. 762 (E. & A.1899), are invoked; but there is no mention of State v. Knight, 96 N.J.L. 461, 115 A. 569, 19 A.L.R. 733 (E. & A.1921).

Appellate review concerns the remedy. It is a remedial procedure secured against legislative interference by Article VI, section II, paragraph 2, section III, paragraph 3, section V, paragraphs 1, 2, and Article XI, section IV, paragraph 3. It had the same security under Article VI, section I, paragraph 1, and section V, paragraph 3 of the Constitution of 1844.

The early cases in this State laid it down that the question of whether a new trial should be granted was 'a subject addressing itself to the discretion of the court, and on that account the judicial action in that sphere has never been subjected to the least superintendency.' Delaware, Lackawanna & Western Railroad Co. v. Nevelle, 51 N.J.L. 332, 17 A. 836, 19 A. 538, 539 (E. & A.1889). It common law, the action thus taken is not reviewable on strict error, for, as was pointed out by Mr. Justice Dixon in that case, 'Neither the decision nor the state of the case on which it was rendered would form part of the record, and at common law the record only was reviewable on error,' and therefore, 'no matter whether questions of law were involved or not, the writ of error would bring up nothing by which the questions would be disclosed.'

Appeals in equity and from the courts which derive their procedure from the civil law bring up the entire record of the proceedings for a reconsideration of the case both on the law and the facts. Sohland v. Baker, 15 Del.Ch. 431, 141 A. 277, 58 A.L.R. 693 (1927); Arnsperger v. Crawford, 101 Md. 247, 61 A. 413, 70 L.R.A. 497 (1905). The writ of error is not of statutory origin; it is an original writ at common law, grantable Ex debito justitiae, to bring up final judgments of inferior tribunals clothed with judicial power, for review in matters of law alone apparent upon the record. Falkner v. Dorland, 54 N.J.L. 409, 24 A. 403 (Sup.Ct.1892); Evans v. Gee, 14 Pet. 1, 10 L.Ed. 327 (1840). Appeals from judgments at law are unknown to the common law. The writ of error Coram nobis or Coram vobis at common law affords means for the correction of error of fact in the court in which the judgment was rendered. Sanders v. State, 85 Ind. 318 (1882); Keane v. State, 164 Md. 685, 166 A. 410 (1933). The judgment thereon is not reviewable at common law. Pickett's Heirs v. Legerwood, 7 Pet. 144, 8 L.Ed. 638, 1833).

In Central Railroad Co. v. Tunison, supra, a writ of error was sued out of the old Supreme Court to review the refusal of a new trial by the Circuit Court under c. 20 of the Session Laws of 1890 (Pamph.L. p. 33), which expressly granted the right of review before final judgment for error either of law or of fact; and the Court of Errors and Appeals ruled that the constitutional jurisdiction of the circuit courts included 'the right to decide finally and without review whether a new trial shall be granted, and that right cannot be taken from them without substantially and materially impairing their powers,' and so that statute was void. But in Kohl v. State, 59 N.J.L. 445, 36 A. 931, 37 A. 73 (E. & A.1896), c. 163 of the Session Laws of 1894 (Pamph.L. p. 246; Gen.Stat.1895, p. 1154), directing a new trial in a criminal case where the entire record of the proceedings had upon the trial, returned with the writ of error, revealed 'manifest wrong or injury * * * upon the evidence adduced upon the trial,' a judgment of conviction of murder of the first degree was reversed on the ground that the evidence was insufficient to 'justify the verdict.' In support of the statute, Mr. Justice Dixon declared: 'To warrant a conviction of crime, the testimony should prove the guilt of the accused beyond a reasonable doubt. If it fails to do this, i.e., if it be of such a nature that, when fully and fairly considered, it will not satisfy any thoughtful mind, beyond reasonable doubt, of the guilt of the accused, then a conviction does manifest wrong, according to our system of administering criminal law. The jurors compose the appropriate tribunal for the determination of controverted questions of fact, but in a civil cause they cannot justly find a verdict for the plaintiff without evidence capable of leading a prudent person to believe in the plaintiff's claim, and in a criminal cause they cannot justly find a verdict for the state upon evidence which, viewed in any rational aspect, must leave reasonable doubt of guilt in every considerate mind. Against such verdict the party aggrieved can, by the common law, appeal to the trial court for a new trial, and under the statute above cited such an appeal can now be made in criminal causes to the appellate tribunal.' Chancellor McGill, in a dissenting opinion holding that the case turned upon the credibility of the witnesses, said that the statute did not contemplate that, on the issue of credibility, the opportunity to observe the witnesses was a negligible factor, 'and that upon the remnant the case is to be determined De novo' but rather that 'it must be 'manifest' that it clearly appears that the conviction is wrong, either because it is against the clear weight of evidence or because it has been influenced in some way by passion, prejudice, mistake, perversion or corruption.' He cited the case of People v. Cignarale, 110 N.Y. 23, 17 N.E. 135 (1888), holding that neither the appellate court nor the court of first instance 'can lawfully usurp the appropriate function of the jury, and neither can substitute its own judgment for that of the jury where the facts are reasonably capable of diverse and opposing inferences.' But that, as we shall see, is not the nature or scope of the review provided by the rule under consideration.

Then came the case of Flanigan v. Guggenheim Smelting Co., cited supra. There, c. 139 of the Session Laws of 1899 (Pamph.L. p. 323), purporting to invest the Court of Errors and Appeals with power on error to reverse a judgment founded on the verdict of a jury if the verdict was against the clear weight of the evidence or was excessive, was set aside as an unconstitutional impairment of the integrity of constitutional courts in that it detracted from their faculty to render judgments 'final as to fact, though not final as to law.' (63 N.J.L. 647, 44 A. 763.) The statutory regulation was deemed an assault upon the 'organic character, * * * jurisdiction * * * and authority' of the old Supreme Court made immutable by the Constitution of 1844. It was thought that the act deprived 'certain judgments that are within the protection of the Constitution' of 'a quality that has hitherto inhered in them,' i.e., 'the attribute of finality as to fact;' and that it was aimed 'not at the mere machinery of justice, not at the boundaries of jurisdiction, but at the conclusiveness of the proceeding--at the effect of the record itself.' In fine, it was considered that a statute 'calculated to make a constitutional court subordinate in matters of fact as to which it was originally supreme' would to that extent 'alter the constitution of such court, change its nature, diminish its authority and impair its jurisdiction'; also, that a legislative regulation which would modify a judgment 'in respect to important...