Kovacs v. Everett

• Court: New Jersey Superior Court — Appellate Division
• Citation: Kovacs v. Everett, 117 A.2d 172, 37 N.J.Super. 133 (N.J. Super. App. Div. 1955)
• Decision Date: 05 October 1955
• Docket Number: No. A--411,A--411
• Parties: George KOVACS, Plaintiff, v. Richard E. EVERETT, Defendant. Alexander KOVACH, Plaintiff-Appellant, v. George KOVACS et al., Defendants-Respondents. . Appellate Division

Page 133

37 N.J.Super. 133

117 A.2d 172

George KOVACS, Plaintiff, v. Richard E. EVERETT, Defendant.

Alexander KOVACH, Plaintiff-Appellant, v. George KOVACS et al., Defendants-Respondents.

No. A--411.

Superior Court of New Jersey Appellate Division.

Argued Oct. 3, 1955.

Decided Oct. 5, 1955.

Harry J. Weiner, Elizabeth, for appellant (Weiner & Weiner, Elizabeth, attorneys; H. Harding Brown, Elizabeth, on the brief).

Frederick C. Vonhof, Newark, for respondent Kovacs (Albert M. Neiss, East Orange, attorney).

Donal C. Fox, Newark, for respondent Everett (Fox & Schackner, Newark, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

On March 20, 1953 Alexander Kovach was a passenger in a car owned and operated by his brother George Kovacs (last name spelled differently) when the car became involved in an intersectional accident with an automobile driven by Richard E. Everett. George Kovacs sued Everett for personal injuries and property damage, and Everett counterclaimed. In a companion case consolidated with the one just mentioned, Alexander Kovach sued both drivers for personal injuries, demanding judgment of $15,000.

In Kovacs v. Everett the jury returned a verdict of no cause of action on the complaint and counterclaim, finding both drivers had been guilty of contributory negligence. No appeal has been taken from the judgment entered on that verdict. The jury also returned a verdict of no cause of action in Kovach v. Kovacs and Everett. Kovach then moved for a new trial as to damages only because the verdict was contrary to the weight of the evidence, inconsistent and irreconcilable with the first verdict, contrary to the charge of the court, and clearly the result of mistake, passion, partiality or prejudice. This motion was denied and judgment duly entered in favor of defendants. Kovach appeals from both the judgment and the order denying his motion for a new trial.

Plaintiff's first two points, that the verdict was against the weight of the evidence and was irreconciable and inconsistent with the verdict rendered in Kovacs v. Everett, may be considered together because they stem from essentially the same argument, namely, that he had proved a compensable injury. The question of liability does not intrude upon our determination of plaintiff's contentions. The jury found both drivers negligent, so that the only question remaining is whether plaintiff had proved injuries resulting from the accident entitling him to recover damages. If we find the jury was justified in returning the verdict it did on the basis of the evidence presented, then neither ground asserted by plaintiff will avail him.

In passing upon plaintiff's argument we are guided by R.R. 1:5--3(a), made applicable to the Appellate Division by R.R. 2:5 which provides that a jury verdict shall be set aside as against the weight of the evidence only if, having due regard to the opportunity of the trial court and the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion. The same standard, incidentally, controls the determination by the trial court of the same question. R.R. 4:61--1(a). And see Hager v. Weber, 7 N.J. 201, 210, 81 A.2d 155 (1951), where the Supreme Court held that a verdict 'that rests upon testimony competent to sustain the inference implied in such a finding is ordinarily conclusive,' and that the court may not set aside a verdict merely because, in its opinion, the jury upon the evidence might well have found otherwise. See also Bazinsky v. Conklin, 8 N.J. 40, 83 A.2d 705 (1951); Capone v. Norton, 8 N.J. 54, 83 A.2d 710 (1951); Flexmir, Inc. v. Lindeman & Co., 8 N.J. 602, 86 A.2d 585 (1952); Barber v. Vaccaro, 32 N.J.Super. 573, 108 A.2d 869 (App.Div.1954), certification denied, 17 N.J. 523, 111 A.2d 807 ((1955).

The action of the jury in returning a verdict against plaintiff passenger while finding both drivers negligent carries with it the obvious conclusion that he had failed to establish compensable injuries proximately resulting from the accident. The medical testimony was in some conflict as to the causal relation between the accident and plaintiff's subsequent complaints of pain and disability, but our reading of the record leads to the conclusion that the circumstances of the accident, the history of plaintiff's physical condition before and after the collision, and the medical testimony amply support the verdict reached by the jury.

The jury not having been persuaded that plaintiff had suffered compensable injuries as a result of the accident it follows that its verdict of no cause of action was not irreconcilable and inconsistent with the similar verdict reached in the companion case of Kovacs v. Everett where both drivers were found contributorily negligent. Negligence without more is insufficient to entitle a party to recover, for he must also show a compensable injury. Watkins v. Myers, 12 N.J. 71, 95 A.2d 705, 36 A.L.R.2d 1330 (1953). It is the injury and not alone the negligent act which gives rise to a right of action, 'for a negligent act is not in itself actionable, and only becomes the basis when it results in injury to another.' Ochs v. Public Service Ry. Co., 81 N.J.L. 661, 662, 80 A. 495, 36 L.R.A.,N.S., 240 (E. & A. 1911); Murphy v. Terzako, 14 N.J.Super. 254, 82 A.2d 1 (App.Div.1951). And see Hughes v. Eureka Flint & Spar Co., Inc., 26 A.2d 567, 20 N.J.Misc. 314, (Cir.Ct.1939).

Plaintiff next argues that the trial judge erred in allowing the jury to see the complaint without also permitting it to take into the jury room the...