Robb v. John C. Hickey, Inc.

• Citation: 20 A.2d 707,19 N.J.Misc. 455
• Parties: ROBB v. JOHN C. HICKEY, Inc., et al.
• Decision Date: 02 July 1941
• Court: New Jersey Circuit Court

20 A.2d 707

19 N.J.Misc. 455

ROBB

v. JOHN C. HICKEY, Inc., et al.

Circuit Court of New Jersey, Morris County.

July 2, 1941.

Syllabus by the Court.

1. A verdict of a jury in a negligence case which finds both plaintiff and defendant guilty of negligence, compares the degrees of their negligence and recommends an award in favor of the plaintiff and against the defendants in the sum of $2,000, is self-contradictory, inconsistent and ambiguous.

2. An inconsistent or ambiguous verdict of a jury recorded at the clerk's desk in the absence of the trial judge is substantially defective and cannot be moulded by the court.

Action based on negligence, by Clyde J. Robb, administrator ad prosequendum of the estate of Georgiana Robb, deceased, against John C. Hickey, Inc., and Roger W. King. On motion by defendants to mould verdict, and on plaintiff's rule to show cause for a new trial.

Defendants' motion denied, and plaintiff's rule made absolute, and new trial granted.

Riordan J. Roett, Jr., of Jersey City (Frank C. Scerbo, of Morristown, of counsel), for plaintiff.

McCarter, English & Egner, of Newark (Gerald McLaughlin, of Newark, of counsel), for defendants.

LEYDEN, Judge.

The issues presented by the pleadings were the negligence of the defendants and the contributory negligence of the plaintiff's decedent. The jury was instructed concerning the applicable principles of law, in the course of which it was pointed out that if contributory negligence upon the part of the plaintiff's decedent had been established, the comparative degrees of the negligence of the parties was immaterial.

The jury returned a verdict in the absence of the judge and it was recorded at the clerk's desk as follows: "The jury finds that there was negligence on the part of both parties involved—The evidence shown is that the defendant was more negligent than the plaintiff—We therefore recommend an award of $2,000.00 to the plaintiff Qyde J. Robb and against the defendants John C. Hickey, Inc., a New Jersey Corporation and Roger W. King."

Both parties are dissatisfied with the verdict; the plaintiff with its substance and the defendants with its form. Plaintiff has a rule to set aside the verdict upon the ground that it is ambiguous, inconsistent, inadequate and contrary to the charge of the court. Defendants, upon notice, move to mould the verdict into one in favor of the defendants and against the plaintiff, urging that it is merely informal and the intent of the jury to find for the defendants is clearly indicated by the sentences: "The jury finds that there was negligence on the part of both parties involved—The evidence shown is that the defendant was more negligent than the plaintiff—"; that the balance of the verdict recommending an award of $2,000 to the plaintiff should be treated as surplusage and disregarded.

It is true that a verdict must be responsive to...