Paxton v. Misiuk

• Decision Date: 10 April 1961
• Docket Number: No. A--20,A--20
• Citation: Paxton v. Misiuk, 34 N.J. 453, 170 A.2d 16 (N.J. 1961)
• Parties: Charles PAXTON, Plaintiff-Appellant, v. Henry MISIUK, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 453

34 N.J. 453

170 A.2d 16

Charles PAXTON, Plaintiff-Appellant, v. Henry MISIUK, Defendant-Respondent.

No. A--20.

Supreme Court of New Jersey.

Argued Dec. 6, 1960.

Decided April 10, 1961.

Harry Chashin, Paterson, for plaintiff-appellant (Marcus & Levy, Paterson, attorneys; Harry Chashin, Paterson, of counsel).

Samuel Doan, Paterson, for defendant-respondent.

The opinion of the court was delivered by

SCHETTINO, J.

This is a passenger-automobile negligence case which was retried as the result of a reversal ordered by the Appellate Division. 54 N.J.Super. 15, 148 A.2d 217 (App.Div.1959). A judgment was entered October 26, 1959 on a jury verdict for $2,000 in plaintiff's favor. An order, dated November 13, 1959, denying a new trial was filed on November 17, 1959. On December 28, 1959 plaintiff filed a notice of appeal. Defendant moved to dismiss plaintiff's appeal on the ground that plaintiff was guilty of evasions of the rules of appellate procedure by not filing the original transcript, by failing to file a brief and appendix within the prescribed time, by filing an abbreviated appendix and by an untimely deposit of security for costs. The motion to dismiss was granted by the Appellate Division upon the completion of the oral argument. Thereafter, we granted plaintiff's petition for certification. 33 N.J. 115, 162 A.2d 341 (1960). By our direction, this appeal was heard on the merits as well as on the appeal from the order of dismissal.

I.

We first consider the appeal from the order of dismissal.

Plaintiff's attorney violated R.R. 1:30--6(c) with respect to the filing of the transcript. The record is not clear as to just what happened. The court reporter states that he was instructed by plaintiff's attorney to prepare an original and copy of the transcript and was advised that if an appeal was to be taken, the original transcript would be returned to the reporter so that he would be able to file it pursuant to the cited rule. Plaintiff's attorney does not so recall the events. Nevertheless, the original and copy were sent to plaintiff's attorney.

R.R. 1:30--6(c) provides in part that if prior to the expiration of the time for appeal, a party requests a transcript of the testimony or of any substantial part or parts thereof, the reporter shall promptly transcribe an original and one first carbon copy thereof, attach his official certificate to both and then deliver the carbon copy to the party making the request and file the original with the clerk of the trial court. These steps were not taken here. Additionally, this rule provides that if an appeal is thereafter taken, the party to whom the copy of such transcript was delivered shall, upon service of the notice of appeal, file the carbon copy of the testimony, or part or parts thereof, with the clerk of the trial court and simultaneously notify the attorney of every other party of said filing. Again, plaintiff violated the rule for, as stated above, the notice of appeal was filed on December 28, 1959, the briefs and a truncated appendix were filed on March 17, 1960 and the transcript was not filed until March 22, 1960. Plaintiff did not, as of date of motion, March 25, 1960, notify defendant of filing of the transcript.

Plaintiff's counsel explains his failure to have the transcript filed at the time of the notice of appeal by stating that the reporter had omitted to transcribe some three pages of the record. He fails to explain his non-compliance with the notice requirement. Respondent urges that plaintiff's counsel in fact delayed the filing of the transcript in order to extend his time for filing of the brief which in this case, under R.R. 1:7--12(a), would have been 30 days after filing of the notice of appeal had the original and copy of the transcript been filed as directed by R.R. 1:30--6(c). Although, as we have said, the procedure here employed violates the rule, we are inclined to give plaintiff's counsel the benefit of the doubt as to whether he deliberately sought to evade the mandate of the rule.

Plaintiff's attorney also violated R.R. 1:2--10 by not depositing security for costs until March 17, 1960. He explains that he thought no security for costs was required because his client held a judgment for $2,000 from which defendant did not appeal and that he assumed his opponent would consent to a waiver of the deposit as was the practice in their county. The rule calls for the deposit and if counsel believed he should be excused, he should have sought an agreement from his adversary or a court order. In fact he did post the security prior to receipt of the notice to dismiss.

Lastly, we refer to appellant's violation of appellate rule R.R. 1:7--1(f) which states in part:

'(The) appendix * * * shall contain such parts of the record as are essential to the proper consideration of the issues, and which the appellant desires the court to read, including such portions which the Appellant reasonably assumes will be relied upon by respondents in meeting the issues raised.' (Emphasis added.)

A reading of the medical testimony indicates clearly that a great deal of the testimony counsel reasonably should have known to be required was omitted.

Nevertheless, we feel the appeal should not have been dismissed. We have on other occasions dealt with the propensity of some attorneys to ignore the rules of the court. In Gnapinsky v. Goldyn, 23 N.J. 243, 247--248, 128 A.2d 697, 699 (1957), Mr. Justice Weintraub, for the court, said:

'That plaintiff failed to comply with the rules is of course evident, and the reasons given are hardly moving. Where a legitimate basis for further time exists, the proper course is a seasonable application for an extension, and no explanation is advanced for plaintiff's failure to seek one.

'The rules of court are designed to expedite litigation and are intended for the equal benefit of all parties. The failure of one side to comply precipitates motions which not only consume the time of the courts and delay justice to other litigants, but as well waste the time of counsel which could be devoted with profit to other matters. There are situations in which relief from the prescribed timetable is warranted, and authority is provided for relaxation of the rule in appropriate cases. R.R. 1:27A and 1:27B. But the discretion is to be exercised by the courts and not by the unilateral decision of counsel for one of the parties. By reason of counsel's infraction, defendants were unfairly put to the burden of a motion to dismiss and the subsequent proceedings before us with reference to the motion, none of which has contributed to a solution of the issues which interest the clients.

'Although we agree the reasons advanced by plaintiff for failure to comply with the rule do not attract sympathetic response and are mindful of the needless trouble to the other parties, yet we are reluctant to approve the dismissal of an appeal where the brief was in fact filed in response to the motion and before argument thereon. The effect of a dismissal is to impose too great a penalty upon a litigant who doubtless was personally blameless. There may be situations in which dismissal is the necessary sanction, but where other measures will fairly adjust such Mesne controversies a dismissal should not be ordered. Hence we feel constrained to reverse the order of dismissal without costs in this court in favor of plaintiff, and indeed with costs in favor of defendant Goldyn, both in the Appellate Division and here, with respect to the motion to dismiss and the review of the order of dismissal.'

Appellant here satisfied the rules prior to the motion except as to the truncated record as to which we assume he was willing to meet the objection. We therefore feel we should follow the same course as in Gnapinsky.

We add some admonitions about the mounting failures to comply with the rules. We repeat that if it is at all possible, the litigant should not be burdened with his attorney's derelictions. An appropriate step is to impose a counsel fee payable by the offending attorney personally to his adversary, with a direction in the order for filing of proof of payment within a prescribed time, and with the proviso that if the adversary declines to accept payment, as if often the case, payment shall be made to the clerk of the court.

II.

We next consider the merits of the appeal. Plaintiff seeks a reversal of the trial court's denial of his application for a new trial on the question of damages. He complains of the admission of certain evidence and of the charge to the jury on plaintiff's burden of proof. Neither party disputes the jury's determination of liability. Plaintiff claimed upon the trial special damages of $6,500, consisting of medical expenses of $3,674 and 29 weeks' loss of earnings at about $100 a week. Among the injuries claimed were a luxation or dislocation of the cervical spine in the area of the sixth and seventh cervical vertebrae designated as C--6 and C--7, for which an operation fusing C--5 to C--8 was performed, and almost complete loss of vision of the right eye allegedly resulting from some event during the fusion operation.

The basic facts are not in dispute. On May 14, 1956 plaintiff was a passenger in defendant's automobile. Misiuk's car ran into a utility pole injuring plaintiff. Plaintiff suffered lacerations of the face and, after being taken by ambulance to a hospital, he received emergency treatment of three or four sutures for a cut under the chin. There was evidence plaintiff could not walk because his left ankle was swollen. Plaintiff claimed he was unconscious while in the hospital. Plaintiff stated that upon arrival at his home in Paterson his left arm and shoulder, as well as his ankle, pained him. Shortly thereafter plaintiff was taken to the emergency room of a Paterson hospital where he was given pills for pain. Plaintiff then returned home.

Beginning May 18 plaintiff made weekly visits to Dr....