Lertch v. McLean
Decision Date | 21 March 1955 |
Docket Number | No. A,A |
Parties | John LERTCH, Plaintiff-Respondent. v. Charles H. McLEAN, Defendant-Respondent, and Trenton Transit and Thomas J. Grosso, Defendants-Appellants. --109. |
Court | New Jersey Supreme Court |
Bernard A. Campbell, Trenton, for plaintiff-respondent.
George Gildea, Trenton, for defendants-appellants (Katzenbach, Gildea & Rudner, Trenton, attorneys).
The opinion of the court was delivered by
On February 27, 1953 plaintiff was a passenger in a bus of the defendant Trenton Transit operated by its employee Thomas J. Grosso, which bus collided with an automobile owned and operated by the defendant Charles H. McLean at the intersection of Roebling and South Clinton Avenues in Trenton, New Jersey. The attorney for the plaintiff filed a complaint which stated in its caption 'John Lertch, Plaintiff v. Trenton Transit, a corporation of the State of New Jersey and Thomas J. Grosso, or In the alternative Charles H. MaLean.' The complaint contained three counts charging several liability, the first count charging negligence against Trenton Transit; the second count charging negligence on the part of Grosso individually and the third count charging negligence against McLean. There was no count charging that the accident was caused by the negligence of Grosso and McLean.
At the pretrial an order was entered which in part reads as follows:
(Italics supplied).
On the trial of the issue the jury returned a verdict in favor of the plaintiff against the defendant McLean in the sum of $1,500 and returned verdicts of no cause of action in favor of the defendants Trenton Transit and Thomas J. Grosso. Judgment on the verdict was accordingly entered.
An appeal was taken to the Appellate Division by the plaintiff and that court found all his grounds to be without merit but on its review of the case, on its own motion discovered that the trial court's charge to the jury was inconsistent and confusing. It chose to grasp upon this on the ground that it was plain error affecting a substantial right of the plaintiff, R.R. 1:5--3(c), and therefore reversed the entire judgment and ordered a retrial on all issues. The defendant Trenton Transit and Thomas J. Grosso applied to this court for certification, which was granted under R.R. 1:10--2(d). On the argument before this court counsel for the plaintiff frankly stated that he knew the suit was in the alternative from its inception to the end of the trial but did nothing to correct it, but now takes the position that the Appellate Division had the inherent power to correct the situation. There can be no question that it has the power to correct a situation where a substantial right of the plaintiff is involved but under the facts present here no such situation exists.
The pretrial order is a cornerstone in the building of our practice in the trial of cases under the new judicial system. One of the purposes of the rule, R.R. 4:29--1, is to allow great liberality in forming and amending pretrial orders so that all phases of the controversy may be finally and justly determined between the parties but as we said in Schlossberg v. Jersey City Sewerage Authority, 15 N.J. 360, 370, 104 A.2d 662, 667 (1954):
(Italics supplied).
The pretrial order in this case defining the issues of negligence between the parties as being in the alternative was never amended during the course of the trial and it controlled its course. Questions or issues not presented in the pretrial order are deemed to be waived and no instruction to a jury should be given by the court inconsistent with the order. Jenkins v. Devine Foods, Inc., 3 N.J. 450, 70 A.2d 736, 22 A.L.R.2d 593 (1950).
To allow deviations from the pretrial order as now sought to be done in the instant case would in effect amount to a nullification of the purpose of the rule and destroy the aims which it was intended to attain, to advance the orderly administration of justice.
The trial judge charged the jury in the first instance that if they found the plaintiff's injuries were caused by negligence they would have to determine who should respond in damages 'one, two or all...
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