Lyon v. Fabricant

• Decision Date: 04 May 1934
• Citation: 172 A. 567
• Parties: LYON et al. v. FABRICANT et al.
• Court: New Jersey Supreme Court

172 A. 567

LYON et al.

v. FABRICANT et al.

Court of Errors and Appeals of New Jersey.

May 4, 1934.

Syllabus by the Court.

1. In a civil cause, an exception to an instruction contained in the charge to the jury is sufficient if it substantially reproduces to the court the language of the instruction claimed by counsel to have been erroneous. It is not necessary in the first instance that counsel, in excepting, go further and state why he deems the instruction to be erroneous, though the trial judge may require the ground of exception to be stated, and in such case the review will be limited to that ground.

2. An instruction to the jury must be viewed in connection with the rest of the charge, and with regard to the issues in the case; and if, when so viewed, it is free from error, it will not be ground for reversal, though it may be wrong, if standing alone. Appeal from Supreme Court.

Action by Raymond I. Lyon, Jr., and others against Max Fabricant and another. From a judgment of the Supreme Court (169 A. 548, 12 N. J. Misc. 39), affirming a judgment for plaintiffs in the common pleas, defendants appeal.

Affirmed.

Henry Pomerehne, of Newark, for appellants.

Walter A. Beers, of Newark, for respondents.

PARKER, Justice.

The case arises out of a midnight collision between automobiles, at Fallsington in Pennsylvania, a few miles from Trenton and on the main road from Philadelphia to Trenton. The circumstances of the accident, as the jury were entitled to find them, are sufficiently stated in the per curiam opinion of the Supreme Court, ubi supra. The same points are made here that were argued before the Supreme Court, With regard to the refusal of the trial court to nonsuit, we concur in the view of that court, and have nothing to add. The same may be said as to the refusal to direct a verdict, though it may as well be pointed out in addition that the point relating to an exhibit, which was argued in the Supreme Court and is again argued here, was not made in the trial court on either the motion to nonsuit or the motion to direct a verdict, and consequently is unavailable on appeal.

This brings us to the exceptions to the charge. The Supreme Court refused to consider these on the merits, because counsel had not stated to the trial court why he objected to the language of the charge, "nor does he point out with any particularity the error in the charge delivered * * * so that the court might have an opportunity, if it was error, to correct it." 169 A. 548, 549, 12 N. J. Misc. 39. Certain decisions are cited in the opinion as supporting that refusal, and will be presently considered. As we read the opinion, it does not question but that counsel in taking his exceptions indicated adequately the language in the charge that he deemed to be erroneous and that he wished to challenge. We have examined the language of the exceptions as taken, and readily recognize it as indicating the passages in the charge quoted in the grounds of appeal. But the ruling of the Supreme Court seems to be on a different ground, namely, that counsel when excepting must not only sufficiently indicate the language challenged, but state to the trial court the reason why it is claimed to be erroneous. But this, we think, is not the correct rule, as regards instructions to the jury. In the reception of of evidence, where an objection is made, the reason for such objection must be given, otherwise the objection, and an exception predicated thereon, are of no avail, if the evidence is received. But, on the other hand, if the court exclude the question, counsel propounding it may enter his exception without assigning any reason in support of such question or other evidence, unless perhaps the court asks for such reason. All this is everyday practice. If written requests to charge are duly submitted and refused, the party submitting them may enter his exception without further ado; and this is also everyday practice.

The same practice obtains where the court charges the jury. Counsel may not interrupt, unless by permission. At the conclusion of the charge, and usually after the jury have gone out, although the practice varies locally, counsel dissenting from any of the instructions given to the jury formulates and states his exceptions thereto, reproducing as nearly as may be the language excepted to. This, as has many times been pointed out, is to notify the trial judge that his ruling is to be made a ground of appeal, and so that he may revise it if desired. See, for example, Kargman v. Carlo, 85 N. J. Law, 632, 636, 90 A. 292.

The cases cited by the Supreme Court do not support the proposition enunciated by that court in this case. They are as follows:

In Potts v. Clarke, 20 N. J. Law, 536, a Supreme Court case, the decision was simply that exceptions to a charge must be specific in pointing out the particular propositions to be challenged. In that case there was one exception to the entire charge.

In Oliver v. Phelps, 20 N. J. Law, 180, there were eighteen assignments of error directed to parts of the charge, but only one exception to the entire charge. The rule laid down (at page 182) is that: "It is not sufficient for a party to say, 'I except to the charge;' and then, to assign error upon every clause and sentence of the charge. The exceptant must point out and call the attention of the judge to the part or parts of the charge to which he excepts; and thus give him an opportunity of correcting himself, or of explaining and obviating the objections." On page 183 the opinion states the rule that an objection to evidence must be accompanied by a reason; but that rule was not applied to a charge. The case caine to this court, 21 N. J. Law, 597, and the charge was reproduced in full. The assignments of error relating to it were brushed aside on the ground that there was merely a general exception, and that was not sufficient.

In Klein v. Shryer, 106 N. J. Law, 432, 150 A. 321, in this court, the only point decided that seems germane to the present discussion is that a ground of appeal directed to part of a charge must reproduce the language alleged to have been erroneous. This refers to grounds of appeal and not to exceptions.

Similarly, in Ciccone v. Colonial Life Insurance Co., 110 N. J. Law, 276, 164 A. 444, the point decided involved the sufficiency of a ground of appeal.

These four cases, therefore, do not support the doctrine enunciated by the Supreme Court in the case at bar. The same court similarly held in Franklin, etc., Co. v. Goodman, 169 A. 534, 12 N. J. Misc. 70, 73, relying on the same decisions. We know of no other decision, and think our reports will be searched in vain for any, which holds that counsel excepting to part of a charge must state any reason for so doing except that he thinks it erroneous in law, which of course goes without saying. True, the exception must fairly indicate what the court said, and not simply the subject of what is said. Fenning, Dornbusch & Co. v. Greenfield, 107 N. J. Law, 272, 276, 153 A. 574. Reference was made in that case to the language of the late Justice Garrison in Benz v. Central R. R. Co. of N. J., 82 N. J. Law, 197, 198, 82 A. 431, 432, viz.: "The rule that requires that an exception be specific, and that counsel in asking for its allowance shall point out to the trial judge the error into which counsel thinks he has fallen, has for its prime object the correction of such error then and there.

"The correction of such error by an appellate court at some future time is a secondary consideration that grows out of the refusal of the trial court to correct its own errors."

And again: "Common sense and common fairness alike require that if counsel notices a slip in judicial language, or what he deems the commission of legal error in the conduct of the trial, he shall call the judge's attention to it at a time and in a manner conducive to its correction at the trial." But, from the beginning, exceptions have been no more than notations on the trial record that counsel challenges the legal correctness of a ruling of the trial court; not arguments or explanations thereon.

The history of exceptions supports this view. That history was exhaustively discussed in the briefs of counsel in the case of State v. Noel, reported in 102 N. J. Law, 659,133 A. 274, though the opinion in that case does not seem to allude to it. The fact is noted here for convenience of reference. The development of oral exceptions noted in the stenographic transcript, from the old-fashioned bills of exceptions written out while the court and jury waited, is shortly sketched in Lowenstein v. Lohman, 109 N. J. Law, at page 217 et seq., 160 A. 817, and the forms in standard form books are cited. There is a bill of exceptions, reproduced entire, in West Jersey R. R. Co. v. Trenton Car Works Co., 32 N. J. Law, 517; and a similar bill is discussed, from the standpoint of sealing, in Bostwick v. Willett, 72 N. J. Law, 21, 60 A. 398. But nowhere, in any of these old forms, is there any indication of the reasons for taking an exception being stated. The modern practice, dating from the Practice Act of 1912, p. 377 (Comp. St. Supp. § 163— 277 et seq.),...