Juliano v. Abeles

• Decision Date: 16 March 1935
• Docket Number: No. 236.,236.
• Parties: JULIANO v. ABELES et al.
• Court: New Jersey Supreme Court

177 A. 666

JULIANO

v. ABELES et al.

No. 236.

Supreme Court of New Jersey.

March 16, 1935.

Action by Michele Juliano against Edmund Abeles and others. On plaintiff's rule to show cause why verdict in his favor should not be set aside and new trial granted.

Order directing new trial of the whole issue.

Argued October term, 1934, before HEHER and PERSKIE, JJ.

Harold Simandl, of Newark, for the rule.

Raymond Dawson, of Jersey City, opposed.

HEHER, Justice.

In this action for damages resulting from injuries claimed to have been tortiously inflicted, plaintiff applied for and secured a rule directing defendants to show cause before this court why the verdict in his favor should not be set aside and a new trial granted upon the ground that the award was grossly inadequate. A like application previously made to the trial judge was denied. 174 A. 341, 12 N. J. Misc. 667.

This application, like the one addressed to the trial judge, invokes a discretionary power of the court. Supreme Court Rules 122 and 123. The exercise of the power to grant a new trial, whether of the entire issue or in respect of damages only, rests in the sound discretion of the court. Rossman V. Newbon, 112 N. J. Law, 261, 170 A. 230; Gormley v. Gasiorowski, 110 N. J. Law, 287, 164 A. 440; Robinson v. Payne, 99 N. J. Law, 135, 122 A. 882, 885; Gaffney v. Illingsworth, 90 N. J. Law, 490, 101 A. 243; First Caldwell Oil Co. v. Hunt, 100 N. J. Law, 308, 313, 127 A. 209. It is the settled rule that a verdict will not be set aside, as against the weight of the evidence, unless the facts and circumstances clearly sustain the inference that it was the result of mistake, passion, prejudice, or partiality. Boesch v. Kick, 97 N. J. Law, 92, 116 A. 796; Queen v. Jennings, 93 N. J. Law, 353, 108 A. 379; Floersch v. Donnell, 82 N. J. Law, 357, 82 A. 733. And, in the determination of this question, the conclusion of the trial judge will be accorded due consideration; for he, through observation of the witnesses, may the better judge of their credibility.

It was conceded by defendants' counsel, on the oral argument, that, assuming liability, the award is grossly inadequate compensation for the resultant damage, but it is maintained that it evidences a compromise on the issue of liability, and that, in such circumstances, a new trial of the entire issue should be had, and not one limited to the ascertainment of the quantum of damages. We are in accord with this view.

The injuries sustained by plaintiff were the result of a highway intersection collision between an automobile owned and driven by his employer, Ambruscio, in which he was a passenger, and one owned by the defendant, Abeles, and operated by the defendant, Fechner. When the cause was moved for trial, plaintiff's counsel voluntarily entered a discontinuance as to the defendant, Ambruscio, and the trial proceeded against his codefendanta There was evidence tending to show negligent conduct by the operators of both vehicles, and the question of whether the negligence of either, or both, was the proximate cause of plaintiff's injuries was peculiarly within the province of the jury. The evidence was sharply in conflict, and we are unable to say, upon a review of the whole case, that it clearly appears that the jury "has settled the question of liability fairly and upon sufficient evidence, so that disassociated from other questions it ought to stand, but that there has been such error in the determination of damages as requires a new trial upon that question." Robinson v. Payne, supra. As observed by Mr. Justice Trenchard, in that case, the power to confine the new trial to the question of damages is one "which ought to be exercised with caution, with due regard to the rights of both parties, and only in those cases where it is certain that the error which resulted in excessive or inadequate damages did not affect the other issues."

Rule 131 of this court directs that, in case a new trial is granted, it shall only be a new trial of the question or questions with respect to which the verdict or decision is found to be wrong, if separable. Rule 132 provides that when a new trial is ordered because the damages are excessive or inadequate, and for no other reason, the verdict shall be set aside only in respect of damages, and shall stand good in all other respects. As pointed out, the exercise of the power conferred by these rules rests in the sound discretion of the court, and the limitation of a new trial to the ascertainment of the quantum of damages will not be ordered unless it clearly appears that the ends of justice will be served thereby. To justify such a limitation, that question must be entirely distinct and separable from the issue of liability; otherwise, such procedure would work a denial of a fundamental right. Norfolk S. R. Co. v. Ferebee, 238 V. S. 269, 35 S. Ct. 781, 59 L. Ed. 1303; Robinson v. Payne, supra. It must be evident, if that course is to be pursued, that the verdict on the basic issue of liability is not tainted with illegality. The new trial cannot be narrowed to the quantum of damages unless it is plain that the error committed at the trial "was so limited in character as with justice to both parties to be separable from the other issues determined by the first verdict." Simmons v. Fish, 210 Mass. 563, 97 N. E. 102, 104, Ann. Oas. 1912D, 588. See, also, Southern Pacific Co. v. Gastelum, 36 Ariz. 106,...