Morin v. Becker
Decision Date | 05 March 1951 |
Docket Number | No. A--81,A--81 |
Parties | MORIN et al. v. BECKER. |
Court | New Jersey Supreme Court |
Isidor Kalisch, Newark, argued the cause for the appellant (Kalisch & Kalisch, Newark, attorneys).
William George, Jersey City, argued the cause for the respondent.
The opinion of the court was delivered by
This appeal from a judgment of the Law Division of the Superior Court in favor of the plaintiffs was taken to the Appellate Division of that court and while pending there was certified here on our own motion.
The facts, so far as here pertinent, may be simply stated. On October 22, 1948, the plaintiffs filed their complaint in a civil action against the defendant alleging that on July 25, 1947, the defendant committed an assault and battery on the plaintiffs resulting in injuries to them. On December 2, 1948, the defendant filed an answer generally denying the allegations of the complaint and by way of counterclaim asserted that an assault and battery had been committed by the plaintiffs on her with resultant injuries. In its charge to the jury the court said: The jury thereafter returned a verdict in favor of the plaintiffs in the sum of $7,000, which a polling of the jury revealed was ten for and two opposed. Judgment was accordingly entered for the plaintiffs and against the defendant on March 3, 1950. A subsequent motion by the defendant for a new trial was denied by the court, but with the plaintiffs' written consent the judgment was reduced to $5,000. From the judgment as thus reduced the defendant has taken this appeal.
The defendant contends (1) that the trial court had no power and was not vested with jurisdiction to apply the statute permitting a five-sixths jury verdict; (2) that she has been deprived of her constitutional right of trial by jury as guaranteed by both the State and Federal Constitutions; and (3) that she has been denied her right under the Federal Constitution to the equal protection of the laws. It is admitted by the defendant, however, that none of these questions were presented at the trial and that no objection was made to the charge of the trial court or to the verdict of the jury as entered.
It is a well established principle that our appellate courts will not consider questions not properly presented to the court below when an opportunity to present them was available, although exceptions to this rule are made when the questions raised on appeal go to the jurisdiction of the court below or when they are matters of great public concern. State ex rel. Wm. Eckelmann, Inc., v. Jones, 4 N.J. 207, 72 A.2d 322 (Sup.Ct.1950), rehearing denied, 4 N.J. 374, 72 A.2d 872 (Sup.Ct.1950); Roberts Electric, Inc., v. Foundations & Excavations, Inc., 5 N.J. 426, 75 A.2d 858 (Sup.Ct.1950); State v. Taylor, 5 N.J. 474, 76 A.2d 14 (Sup.Ct.1950). The defendant asserts that we should consider the constitutional questions here raised because the trial court was without power or jurisdiction to enter a judgment issued on other than a unanimous verdict. This argument is wholly without merit in view of the decision in Margolies v. Goldberg, 101 N.J.L. 75, 127 A. 271 (E. & A.1925) wherein it was stated: 101 N.J.L. at pages 79, 82, 127 A. at page 273. This language is especially appropriate here and effectively disposes of the defendant's contention that the court below was without jurisdiction to enter the judgment appealed from. Because the question of the validity of the five-sixths jury statute, however, is of such vital importance to the public, we will proceed to consider the questions raised by the defendant as to its constitutionality.
The defendant's contention that her rights under the Federal Constitution have been violated by reason of the statute authorizing a five-sixths jury verdict may be disposed of speedily. The United States Supreme Court has consistently held that neither the Seventh nor Fourteenth Amendment to the Federal Constitution is violated by a state law permitting a verdict to be entered other than by a unanimous jury, the several states being free to regulate trials in their own courts in their own way. Thus, in the case of Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1900), which was concerned with the validity of a statute authorized by the Utah Constitution and providing that criminal prosecution may be had on information as well as on indictment, that in courts of general jurisdiction, except in capital cases, a jury shall consist of eight jurors and in courts of inferior jurisdiction of four jurors, and that while in criminal cases a verdict must be unanimous in civil cases three-fourths of the jurors may find a verdict, the court said (176 U.S. at page 605, 20 S.Ct. at page 451, 44 L.Ed. at page 606.)
Moreover, in Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961 (1916), it was held that the Federal Constitution did not require a unanimous verdict in the state courts even when the rights being enforced accrued under a Federal statute. And in Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678 (1876) it was decided that the Federal Constitution was not violated by a state statute which in certain cases dispensed with the necessity of a jury verdict altogether. It may be pointed out in passing that the decision in American Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079 (1897), and the cases decided on its authority to the effect that legislation providing for a verdict by less than a unanimous jury violates the Seventh Amendment to the Federal Constitution are of no concern here, because the statutes there involved were enacted by territorial legislatures and not by sovereign states which are not subject to the Seventh Amendment.
The Federal question disposed of, inquiry must next be directed to the question of whether or not the defendant has been denied any rights guaranteed her by the New Jersey Constitution. Article I, paragraph 9, of the Constitution of 1947 provides: Pursuant to this specific constitutional authorization, the Legislature by Section 1 of Chapter 120 of the Laws of 1948 (R.S. 2:27--233.1, N.J.S.A.) provided: Section 3 of the act (R.S. 2:27--233.3, N.J.S.A.) further provided that it 'shall not apply to any cause commenced before the effective date of this act' and Section 4 (R.S. 2:27--233.4, N.J.S.A.) that it shall take effect on September 15, 1948, the date on which the Judicial Article of the Constitution of 1947 became effective, Article XI, Section IV, paragraph 14.
In view of this specific and unequivocal constitutional...
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