Purpura v. Public Service Elec. & Gas Co.

• Decision Date: 13 January 1959
• Docket Number: No. A--577,A--577
• Citation: 53 N.J.Super. 475,147 A.2d 591
• Parties: Vincent PURPURA, Plaintiff-Respondent, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 475

53 N.J.Super. 475

147 A.2d 591

Vincent PURPURA, Plaintiff-Respondent, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Defendant-Appellant.

No. A--577.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 27, 1958.

Decided Jan. 13, 1959.

Frank A. Sickinger, Newark, argued the cause for defendant-appellant (Luke A. Kiernan, Jr., Newark, attorney).

John R. Kelly, Tenafly, argued the cause for plaintiff-respondent.

Before Judges SCHETTINO, HALL and GAULKIN.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Plaintiffs sued in the Superior Court, Passaic County, for damages for personal injuries which he sustained when the automobile driven by him collided with defendant's vehicle at an intersection. Defendant counterclaimed. The case was transferred to the Passaic County District Court for trial. There the jury brought in a verdict of $2,632.50 in favor of plaintiff upon his claim, and a verdict of no cause for action on defendant's counterclaim.

Defendant moved for a new trial. The notice of motion is not printed, but defendant's brief says (and it is not denied) that the motion was 'for a new trial as to all issues.' On January 7, 1958 the trial judge ruled that as to liability the verdict should not be disturbed, but as to damages it was excessive. He therefore ordered that there be a new trial as to damages only, unless plaintiff agreed to accept a reduction of the verdict to $1,925. Plaintiff refused to accept that sum so, by order dated January 22, 1958, a new trial was ordered as to damages only.

The new trial resulted in a verdict of $3,425. Defendant moved for a new trial on the ground that this verdict was excessive. That motion was denied.

Defendant now appeals from the order of January 22, 1958, arguing that it was error to order a new trial as to damages only, and that a new trial should have been ordered as to all issues. Defendant also appeals from the judgment upon the verdict in the second trial, on the grounds that (a) plaintiff's attorney made improper prejudicial statements during his summation, (b) the verdict in the second trial was excessive, and (c) the trial court erred in excluding certain testimony offered by the defendant.

We find no error in the order for a new trial as to damages only. Defendant argues, quoting from Hendrikson v. Koppers Co., Inc., 11 N.J. 600, 608, 95 A.2d 710, 714 (1953), that 'a new trial may be limited to damages only, where that is the only question with respect to which the verdict or judgment is wrong and it is fairly separable from the other issues, and the best interests of justice will be served by granting a partial new trial.' Defendant cites many cases in support of that proposition.

However, the rationale of all of the cases cited by defendant is that the trial court should not order a new trial as to damages only, When the verdict is too low, unless the court is sure the lowness of the verdict is not part of a compromise upon liability. Obviously that rationale does not apply to cases in which the trial court orders a new trial as to damages only because the verdict is too high. There the trial court must consider an entirely different question, namely, whether the verdict is so excessive in amount as to show that the jury was so moved by passion or prejudice that its verdict as to liability must be equally tainted. When it is so excessive then, also, the trial court should not limit the new trial to damages only. Kress v. City of Newark, 8 N.J. 562, 86 A.2d 185 (1952).

In the case at bar it seems to us that the defendant does not urge, on this appeal, that the verdict in the first trial was so excessive in amount that it tainted the entire verdict, even as to liability. If defendant does intend to so argue we find no basis for the argument.

However, the judgment which followed the second trial must be reversed because of the remarks made by plaintiff's attorney in his summation. Plaintiff's attorney told the jury:

'* * * believe me, when I say this to you, a high figure, a high amount in five figures is what he deserves for his injury.'

This was an improper remark. Botta v. Brunner, 26 N.J. 82, 91, 138 A.2d 713, 60 A.L.R.2d 1331 (1958). Defendant immediately moved 'for a mistrial.'

The judge simply said 'Deny your motion.' He gave the jury no curative instructions then or thereafter. He did not admonish counsel, nor tell the jury to ignore the remark, nor in any other way express his disapproval. The jury therefore had every reason to believe the judge considered the remark a proper one. Leffler v. Aetna Life Ins. Co., 119 N.J.L. 370, 373, 196 A. 732 (E. & A. 1937).

After the judge had so summarily rejected defendant's objection, plaintiff's counsel continued with his summation and almost immediately, said:

'But this is not an instance where we must feel against the Public Service because the Public Service is a big corporation worth a lot of money.'

This statement also was improper. See Leffler v. Aetna Life Ins. Co., supra, and the annotations in 32 A.L.R.2d 9 and 78 A.L.R. 1438. It also heightened the impropriety and prejudice of the earlier 'five figures' remark. Haid v. Loderstedt, 45 N.J.Super. 547, 554, 133 A.2d 655 (App.Div.1957). The fact that plaintiff's attorney said 'this is not an instance * * *' instead of saying that it was an instance, made it no less objectionable. That the Public Service is a corporation with a lot of money should not have been mentioned at all.

Defendant's attorney immediately moved again for a mistrial, because of this remark. The trial judge did not answer him, nor did he rule on the motion. He said nothing and did nothing while the following colloquy went on in the presence of the jury 'Mr. Sickinger: Again I move for a mistrial, your Honor.

'Mr. Kelly: That would be wrong if you did that. My goodness!

'Mr. Sickinger: Mr. Kelly knows he is not to refer to the defendant in that manner.

'Mr. Kelly: Well, if everybody doesn't know it in this state--I'll withdraw that remark.

'Mr. Sickinger: It can't be withdrawn, your Honor.

'Mr. Kelly: It can't be withdrawn; I'll impress it if necessary if that will help you, but I don't believe it's objectionable, your Honor. Everyone knows that it's common knowledge in this state what the Public Service Electrict and Gas Company is. We had to ask everybody on the opening whether they had business with them outside of buying electricity and gas from them, which we all do. May I proceed, your Honor?'

The trial judge merely responded 'You may.' Again there was no admonition to counsel, and no instruction to the jury--in short, nothing to show to the jury that the judge disapproved the remark, or that it was improper.

As this court said in Haid v. Loderstedt, supra, 45 N.J.Super. at page 554, 133 A.2d at page 659:

'Courts exist for the judicial determination of the rights of the litigants and for the administration of justice, and it is the duty of those presiding, as far as humanly possible, to see that the setting of each individual case shall be such that an impartial and just deliverance shall be had between the parties, and when counsel deliberately seeks to inject into a cause an element which has, and is designed to have, the effect of prejudicing the rights of one or the other of the litigants, it is the duty of the judge to guard against such effect, either by arresting the trial in limine, as was requested in the present case or by guarding against the...