Mazzietelle v. Belleville Nutley Buick Co.

• Decision Date: 30 September 1957
• Docket Number: No. A--417,A--417
• Citation: 46 N.J.Super. 410,134 A.2d 820
• Parties: Frank MAZZIETELLE, Plaintiff-Appellant, v. BELLEVILLE NUTLEY BUICK CO., a corporation of the State of New Jersey and Buick Motor Co., a corporation of the State of Michigan, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 410

46 N.J.Super. 410

134 A.2d 820

Frank MAZZIETELLE, Plaintiff-Appellant, v. BELLEVILLE NUTLEY BUICK CO., a corporation of the State of New Jersey and Buick Motor Co., a corporation of the State of Michigan, Defendants-Respondents.

No. A--417.

Superior Court of New Jersey Appellate Division.

Argued Sept. 9, 1957.

Decided Sept. 30, 1957.

Robert M. Wood, Newark, for plaintiff-appellant (James L. Handford, Newark, attorney; Robert M. Wood, Newark, of counsel).

J. Emmet Cassidy, Hackensack, for defendants-respondents (J. Emmet Cassidy, attorney and of counsel).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

Plaintiff appeals from a judgment Non obstante verdicto, entered in the Essex County Court, subsequent to a jury verdict in favor of the plaintiff in the sum of $2,500.

Plaintiff instituted suit against the defendant car dealer, Belleville Nutley Buick Co., and the defendant manufacturer, Buick Motor Co., for damages to his automobile which resulted from a fire. The cause of action against the dealer was based on its failure to inspect for defects complained of by the owner, negligent repair and failure to repair. The cause of action against the manufacturer was involuntarily dismissed, from which the plaintiff does not appeal.

The facts are not in dispute. Plaintiff, on September 20, 1955, purchased a new 1955 Buick automobile from defendant, Belleville. In connection with the purchase price Mazzietelle received an 'Owner's Service Policy' wherein the defendant agreed to service the car and repair defects. He testified to having many troubles with the car and to having taken it back to the defendant on about 15 occasions from the date of purchase until December 23, 1955, when it was destroyed. The car was equipped with radio, heater, defroster, power steering and power brakes. The defendant admitted it had made various repairs on the car on some nine occasions up to December 14, 1955, the last date on which it had performed any work on the car. Plaintiff testified that a few days after the purchase of the car he complained to defendant 'of a burnt smell in the car * * * like something was burning * * * in the area of the dashboard' when the car was in operation, and that it would smell 'all the time.' He also complained to the defendant that the electrical apparatus for the windows would not 'go up and down' but apparently this was repaired prior to the fire. He testified that the radio did not work satisfactorily, 'it would play and then go out' and was changed by the defendant three times, and that following the replacement of the third radio 'it would go on and off like it was shorting * * * it just faded away'; that a new voltage regulator was installed but was not adjusted and that the battery was not charging. Plaintiff took the car to the defendant for repairs 'about 15 times or more * * * and the car was there about 20 times.' When the defendant last had the car for repairs on December 14, 1955, the plaintiff complained that the car seemed 'it was going out of gas and it would work back and forth like it was going out of gas and slow down and pick up, and I brought it in numerous times but that was never fixed.'

When the plaintiff last took the car to the defendant on December 19, 1955 he was told they were busy and to return with the car the following week. On December 23, 1955 plaintiff drove his car out of the parking area at his place of employment, parked it at the curb, returned to close the gates, and while doing so he heard 'something like a little explosion and by the time (he) turned around, the car was on fire.' He testified that the fire appeared to be 'underneath the dashboard' and 'the whole car went up.' There were no passengers in the car nor was he smoking, as he had just come out of the plant where smoking is not permitted. He did not believe the motor was 'touched' by the fire, nor was the gasoline or fuel system involved in the fire. The testimony discloses that the bulk of the damage was to the interior of the car.

The trial judge denied defendant's dismissal motions both at the end of plaintiff's case and at the close of all the evidence, but after a jury verdict of $2,500 for the plaintiff, the verdict was set aside and judgment was entered Non obstante veredicto for the defendant, on the ground that the evidence could not support a finding of negligence. The trial judge devoted much of his opinion, 44 N.J.Super. 70, 129 A.2d 465 (Cty.Ct.1957), to the question of whether or not he had the power to enter a judgment Non obstante veredicto. While the power of the trial judge to enter such a judgment is not questioned on this appeal, it should be noted that 'to give judgment notwithstanding a verdict' has been superseded by R.R. 4:62--2, which provides that 'the procedure for * * * a new trial or for any relief from a judgment or order (is) by motion * * * or * * * by an independent action.' Cf. Mortgage Corp. of N.J. v. Aetna Cas. & Ins. Co., 19 N.J. 30, 41, 42, 115 A.2d 43 (1955); 30 Am.Jur., Judgments, § 52, p. 844; Waltzinger, New Jersey Practice, R.R. 4:62--2, and note at p. 117; Schnitzer, Civil Practice and Procedure, 11 Rutgers L.Rev. 363, 376 (1956). The relief provided by R.R. 4:62--2 does not authorize the entering of a judgment that is contrary to the jury's verdict. After the jury verdict, the court may either grant a new trial or relieve a party from the operation of a judgment. If the defendant was entitled to any relief, it was the granting of his motion for involuntary dismissal or for judgment granted before the jury received the case for its consideration. R.R. 4:42--2(b), R.R. 4:51. In Mortgage Corp. of N.J. v. Aetna Cas. & Ins. Co., supra, the trial court entered final judgment for the plaintiff, and the Supreme Court agreed on the merits with the entry of a trial judgment for the plaintiff notwithstanding a jury verdict for the defendant, thus meeting the procedural objection to the action of the trial court. However, the procedural question is here immaterial in view of our disposition of the present appeal.

Plaintiff on this appeal argues a single ground for reversal: that the trial court, having denied defendant's motion for judgment, erred in setting aside the jury verdict in favor of plaintiff where the facts disclosed that he had frequently complained to defendant of defects in the electrical equipment and of a burning odor, and that the subsequent attempts by defendant to remedy these defects and its failure to repair the defects resulted in his car being damaged by fire. The issue is whether or not there were disputed factual questions for submission to the jury for its consideration. Were there sufficient proofs to present a debatable question as to whether or not the defendant had failed to inspect for defects after the plaintiff...