Marsero v. Public Service Interstate Transp. Co., s. A--283

• Decision Date: 21 June 1950
• Docket Number: A--272,Nos. A--283,s. A--283
• Citation: 8 N.J.Super. 268,74 A.2d 328
• Parties: MARSERO et al. v. PUBLIC SERVICE INTERSTATE TRANSP. CO. MALINAUSKAS et al. v. PUBLIC SERVICE INTERSTATE TRANSP. CO. et al.
• Court: New Jersey Superior Court — Appellate Division

Page 268

8 N.J.Super. 268

74 A.2d 328

MARSERO et al. v. PUBLIC SERVICE INTERSTATE TRANSP. CO.

MALINAUSKAS et al. v. PUBLIC SERVICE INTERSTATE TRANSP. CO. et al.

Nos. A--283, A--272.

Superior Court of New Jersey

Appellate Division.

Argued June 12, 1950.

Decided June 21, 1950.

Frank M. Lario, Camden, argued the cause for plaintiffs-respondents Dorothy Marsero and Frank J. Marsero.

Carl T. Freggens, Newark, argued the cause for defendants-appellants, Public Service Interstate Transp. Co. and William A. Slimm, Sr.; Herman H. Wille, Jr., on the brief.

Horace G. Brown, Camden, argued the cause for plaintiffs-respondents Anna Malinauskas and Joseph Malinauskas.

Samuel P. Orlando, Camden, argued the cause for defendant-respondent Frank J. Marsero (Orlando, Devine & Tomlin, Camden, attorneys).

Before Judges McGEEHAN, COLIE and EASTWOOD.

The opinion of the court was delivered by

McGEEHAN, S.J.A.D.

Appeals were taken from two judgments entered in the Superior Court, Law Division, one a judgment against the Public Service Interstate Transportation Company and in favor of plaintiff Dorothy Marsero for $1,000 and in favor of plaintiff Frank J. Marsero for $750; the other a judgment against the Public Service Interstate Transportation Company and William A. Slimm, Sr. and in favor of plaintiff Anna Malinauskas for $6,000 and in favor of plaintiff Joseph Malinauskas for $1,500.

On September 24, 1948 a collision occurred between an automobile owned and driven by Frank Marsero, in which his wife Dorothy was a passenger, and a bus owned by Public Service Interstate Transportation Company (hereinafter referred to as Public Service) and driven by its employee William A. Slimm, Sr. The suit of Dorothy and Frank Marsero was against the Public Service alone. The suit of Anna and Joseph Malinauskas was against Public Service, William A. Slimm, Sr. and Frank Marsero, individually, jointly and in every combination of the three defendants. Public Service admitted ownership and operation of the bus. The cases were consolidated for the purpose of trial. A jury verdict rendered by ten or more of the jury agreeing would be as valid as though it had been rendered by the entire jury, L. 1948, c. 120, R.S. 2:27--233.1 et seq., N.J.S.A.

The appellants argue that the trial court committed reversible error in accepting and recording the verdicts against the defendants Public Service and William A. Slimm, Sr.

Both cases went to the jury at 12 noon. At 3:10 p.m. the jury returned to the courtroom, at which time the forelady asked the following question: 'We would like to know if we find both the Public Service and Mr. Marsero both negligent, can Mrs. Marsero collect any damages for her injury?' The court answered: 'You may consider it, yes, and return a verdict in her behalf.' The jury again retired at 3:17 p.m. and returned to the courtroom at 3:47 p.m., when the following occurred:

'The Clerk: Members of the jury, have you agreed on a verdict?

'The Forelady: We have. We, the jury, find Public Service Interstate Transportation Company and the driver Mr. Slimm guilty of negligence and award the sums of: Mr. Malinauskas, $1,500.00; Mrs. Malinauskas, $6,000.00; Mr. Marsero, $750.00; and Mrs. Marsero, $1,000.00.

'The Clerk: Members of the jury harken to your verdict, as the Court has ordered it recorded: You find for the plaintiff joseph Malinauskas, $1,500.00 against the defendant Public Service Interstate Transportation and William A. Slimm, Sr.; for the plaintiff Anna Malinauskas, $6,000.00, against the defendant Public Service Interstate Transportation Company and William A. Slimm, Sr.; for the plaintiff Frank J. Marsero, $750.00 against the defendant Public Service Interstate Transportation Company and William A. Slimm, Sr.; and for the plaintiff Dorothy Marsero, $1,000.00 against the defendant Public Service Interstate Transportation Company and William A. Slimm, Sr.

'The Clerk: Is that a unanimous verdict?

'The Forelady: No.

'The Clerk: I will call the names of the jury and you will report the verdict as I call your name.

'Juror No. 4: The over-all verdict is unaninmous but some features were not.

'The court: If there is any dissent, as your names are individually called now, you may voice it.

'Juror No. 4: On the over-all picture?

'The Court: Any element you dissent on.

(Names of Jurors called by the Clerk, and they reported as follows:)

'No. 1, Agree; No. 2, Agree; No. 3, Agree; No. 4, I found both the Public Service and the other party guilty of negligence; No. 5, Agree; No. 6, I found negligence on the part of the driver of the car but more negligence on the part of the Public Service; No. 7, Agree; No. 8, I found negligence on the part of the bus driver and driver of the car; No. 9, I found both guilty of negligence, more so the Public Service; No. 10, I found the bus driver guilty of negligence; No. 11, Agree; No. 12, Agree.'

The court then asked the jurors who had announced that they found negligence on the part of both the Public Service bus driver and the driver of the car to stand. Jurors No. 4 and No. 8 stood. On repetition of the question by the court, jurors No. 6 and No. 9 also stood. The court then ordered recorded as announced the verdicts for Anna and Joseph Malinauskas and the verdict for Dorothy Marsero, and further instructed the jury: 'In order that a verdict in favor of Mr. Marsero be recorded, there must be at least 10 who have found that he was not guilty of any negligence. You may retire to consider further the cause of action of Mr. Marsero v. the Public Service.' The jury retired at 4:35 p.m. The following colloquy ensued:

'Mr. Wille: If the Court please, I take exception to the Judge's entry of the judgment in favor of Mr. and Mrs. Malinauskas against defendant Public Service, taking that question away from the jury and returning them to consider the other case, because if the jury find on their return that Mr. Marsero is guilty of negligence they should also be given the opportunity of assessing damages against that party.

'Mr. Brown: It would seem to me that you should charge this jury that if they find both of the defendants were guilty of negligence, then that their verdict for the Malinauskas should be against all of the defendants.

'The Court: Anything further? That is noted on the record.'

The jury returned to the courtroom at 4:50 p.m. and the forelady announced that the jury had agreed on the following verdict: 'We find the Public Service...