Poland v. Parsekian, A--623

• Decision Date: 05 December 1963
• Docket Number: No. A--623,A--623
• Citation: 81 N.J.Super. 395,195 A.2d 660
• Parties: Charlotte POLAND and Joseph O. Poland, her husband, Plaintiffs-Respondents, v. Ned J. PARSEKIAN, Director, Division of Motor Vehicles, Department of Law and Public Safety, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 395

81 N.J.Super. 395

195 A.2d 660

Charlotte POLAND and Joseph O. Poland, her husband Plaintiffs-Respondents, v. Ned J. PARSEKIAN, Director, Division of Motor Vehicles Department of Law and Public Safety, Defendant-Appellant.

No. A--623.

Superior Court of New Jersey Appellate Division.

Argued Oct. 14, 1963.

Decided Dec. 5, 1963.

Richard H. Hughes, Jersey City, for appellant (Irving H. Lewis, Trenton, attorney).

Peter Fless, Jr., Trenton, for respondents (Jack DiNola, Trenton, attorney).

Before Judges GAULKIN, FOLEY and LEWIS.

The opinion of the court was delivered by

FOLEY, J.A.D.

This is a negligence case brought under the authority of N.J.S.A. 39:6--78 which, in circumstances here presented, permits an action against the Director of the Division of Motor Vehicles by one injured in an accident arising out of the ownership, use or maintenance of a motor vehicle when the identity of the vehicle and the owner and operator thereof cannot be ascertained.

The complaint is in two counts. Charlotte Poland brought suit for personal injuries; her husband sought consequential damages for out-of-pocket losses and deprivation of the services and consortium of his wife. The jury returned a single verdict of $10,000 on both counts. Subsequently, defendant moved for a new trial upon the ground that the verdict was 'a result of mistake passion partiality or prejudice and against the weight of the evidence,' see R.R. 4:61--1, and for a judgment notwithstanding the verdict upon the ground that 'the plaintiff was guilty of contributory negligence as a matter of law.' R.R. 4:51--2(a). The record of the ruling on the motions indicates that it then was the court's intention to set aside the verdict 'with relation to damages only,' the court directing counsel to prepare an order to that effect. However, the order presented by defendant's attorney, consented to as to form by plaintiffs' attorney and executed by the judge, merely directed that 'defendant's motion be and hereby is dismissed.'

The appeal is predicated upon the contentions that: (1) a motion made for dismissal on plaintiffs' opening should have been granted; (2) plaintiff failed to make out a Prima facie case and, thus, defendant's motion for dismissal at the close of her evidence should have been granted; (3) judgment N.o.v. should have been entered upon the ground that plaintiff was guilty of contributory negligence as a matter of law; and (4) the joint verdict in favor of the two plaintiffs is defective on its face.

Our present practice does not favor a dismissal on plaintiff's opening to the jury. A motion for dismissal then made should not be granted unless the facts are undisputed and the law free from doubt. Passaic Valley Sewerage Com'rs v. Geo. M. Brewster, etc., Inc., 32 N.J. 595, 606, 161 A.2d 503 (1960); Farkas v. Middlesex Board of Freeholders, 49 N.J.Super. 363, 367, 139 A.2d 779 (App.Div.1958). Moreover, even when the court errs in denying a motion addressed to the opening, the error is cured if evidence subsequently adduced raised factual issues to be submitted to the jury. Liberatori v. Yellow Cab Co. of Philadelphia, 35 N.J.Super. 470, 474, 114 A.2d 469 (App.Div.1955). See also Glass v. American Stores Co., Inc., 110 N.J.L. 152, 155, 164 A. 305 (E. & A. 1933). The case is rare indeed where the interests of justice will not be served by withholding action on, or by denying, the motion and receiving proof. Passaic Valley supra, 32 N.J. at pp. 606--607, 161 A.2d at pp. 508, 509; Sherman v. Josephson, 44 N.J.Super. 419, 426, 130 A.2d 871 (App.Div.1957).

A motion for dismissal made at the close of plaintiff's case admits the truth of plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom which is favorable to the plaintiff, and denies only its sufficiency in law. Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170, 113 A.2d 13 (1955).

Mrs. Poland's testimony, when viewed in a light most favorable to her, would permit a jury to conclude that while standing on the shoulder of Route 130, a four-lane highway, and seeking a ride, she was struck by a passing vehicle which was not brought to a stop after the accident, notwithstanding that the driver knew or should have known of the collision. Such conclusions, if made, justified an inference of negligence on the part of the hit-and-run driver. The court, therefore, properly denied the motion for judgment made at the close of plaintiffs' case.

Defendant did not move for judgment of involuntary dismissal at the close of the entire case. As we have noted, he subsequently moved for judgment N.o.v. in conjunction with his alternate motion for a new trial. Defendant now argues that 'at the conclusion of the entire case, or on motion for judgment N.o.v. the court should have taken the case Sub judice from the consideration of the jury.' Under this point he limits his argument to a contention that the proofs conclusively established that the plaintiff was contributorily negligent as a matter of law.

R.R. 4:51--2 provides in part:

'(a) If a motion for judgment is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the verdict or within 10 days thereafter or if no verdict is returned, within 10 days after the jury's discharge. If the motion is denied and the case has been submitted to the jury, the motion may be renewed within 10 days after the verdict or the discharge of the jury. The court may enter judgment in accordance with the motion or, if the ends of justice so require, may order a new trial.'

On this appeal plaintiff does not challenge defendant's right to move for judgment N.o.v. in the absence of a motion for judgment at the close of the entire case and a reservation of decision thereon. However, in the interest of orderly practice and with a view to what we deem to be the purpose of R.R. 4:51--2, we feel compelled to do so. The rule, which is modeled after Rule 50 of the Federal Rules of Civil Procedure, was designed to permit the trial court to submit a case to the jury for factual determination where a motion properly made at the close of the entire case raised complex questions dealing with the legal sufficiency of the proofs offered by one of the parties. The objective in view was to grant repose to the controversy if the jury decided the case in the movant's favor or, alternatively, if the jury found against the movant, to permit the trial judge upon further reflection to decide the legal question involved. If the trial court then decided the motion for judgment N.o.v. in favor of the movant, and on appeal this was found to have been in error, the jury verdict would be reinstated and the parties saved the expense of the second trial which would have ensued had the case erroneously been taken from the jury.

In adopting R.R. 4:51--2 the rule makers expressly required, as a condition precedent to its operation, a motion made at the close of the entire case and a reservation of decision thereon. Ordinarily, absent a motion for dismissal at the close of a case, a party is presumed to have waived his right to a judicial determination of the legal sufficiency of his adversary's claim. A legal point is not saved for review if the trial court is not, on proper motion, informed of the course the movant desires the court to take. We can see no reason why the rule should be otherwise in the present situation, particularly in view of the emphasis which the rule itself places upon the making of a motion at the close of all the evidence. This is in accord with the general rule that the propriety of the action of the trial court in granting or denying a motion for directed verdict will not be considered on review when no exception to such action was taken at the trial and a judgment N.o.v. will not be granted on appeal where there is no motion for a directed verdict in the trial court. 5 Am.Jur.2d, Appeal and Error, § 632, pp. 88--89. See also Annotation, 69 A.L.R.2d 478 et seq. (1960). We are, therefore, of the view that the defendant was without standing to move for judgment N.o.v. in this case.

In any event, we find defendant's claim that plaintiff was guilty of contributory negligence as a matter of law to be without substance. Contributory...