Roberts Elec. v. Foundations & Excavations

• Decision Date: 23 October 1950
• Docket Number: No. A--12,A--12
• Citation: 5 N.J. 426,75 A.2d 858
• Parties: ROBERTS ELECTRIC, Inc. v. FOUNDATIONS & EXCAVATIONS, Inc.
• Court: New Jersey Supreme Court

Page 426

5 N.J. 426

75 A.2d 858

ROBERTS ELECTRIC, Inc. v. FOUNDATIONS & EXCAVATIONS, Inc.

No. A--12.

Supreme Court of New Jersey.

Argued Oct. 2, 1950.

Decided Oct. 23, 1950.

W. Thomas McGann, Moorestown, argued the cause for appellant.

Martin F. McKernan, Camden, argued the cause for respondent (Raymond J. Osborn, Camden, attorney).

The opinion of the court was delivered by

VANDERBILT, C.J.

This is an appeal from the judgment of the Appellate Division of the Superior Court unanimously affirming a judgment entered in the Law Division of that court in favor of the plaintiff for $1,737.32 for work done as an electrical subcontractor of the defendant. Inasmuch as the defendant's right to appeal hinges on the conduct of the trial judge rather than on the subject matter of the suit, it is unnecessary to state the issues or to summarize the evidence, or to deal with the other questions raised on this appeal.

In the course of the trial several remarks were made by the court which the defendant contends were so prejudicial to its case as to deny it a fair trial. The first incident occurred when Thomas J. Hosey, the president of the plaintiff corporation, was testifying. Asked the date on which the contract was entered into, he replied March 17, 1948, which called from the court the comment, 'That is St. Patrick's Day', with which the witness agreed. Shortly thereafter, while the same witness was on the stand and counsel were arguing an objection that had been made, the court observed, 'This is not St. Patrick's Day.' At one time when James E. Foley, the president of the defendant corporation, was testifying, the judge in an aside observed, 'Foley, is that Foley as in Foley Square?' This question does not appear in the official transcript of the proceedings of the trial but was testified to at a supplemental hearing prior to this appeal. At another time the court referred to the defendant corporation as 'the Foley corporation'. These remarks directed indiscriminately at the plaintiff and at the defendant seem quite harmless and we are sure that they could not have prejudiced either party, albeit they offend Canon 10 of Judicial Ethics enjoining the judge to be courteous to counsel and Canon 15 with reference to avoiding controversies that are apt to obscure the merits of the dispute between litigants and lead to its unwise disposition. The quotation in the preface to the Ganons of Judicial Ethics from Lord Bacon's Essay Of Judicature, 'An over speaking judge is no well-tuned cymbal' is not without its applicability here. When a witness for the defendant was being examined and the plaintiff's attorney objected to a particular question as being leading, the court said, 'It is leading, but I suppose it would take quite a time to get the witness to understand what the inquiry is about.' This particular remark, the defendant now contends, cast an aspersion on the intelligence of the defendant's witness, but it would seem to be the kind of innocuous comment which is frequently made when a leading question is permitted to speed the trial.

When the defendant's attorney was putting in evidence a bill from the Public Service Interstate Transportation Company for $2.54, the court is said to have remarked, 'Does anybody have $2.54 that they can give to Mr. McGann so that we can get this matter over?' The final incident which the defendant considers objectionable is an admonition made by the court while counsel for the defendant was summing up to the jury to 'Stop kissing the jury'. These two remarks do not appear in the official transcript of the trial but they were testified to in the supplemental hearing. Defendant now contends that the court's rebuke compelled its counsel to discontinue his explanation of the exhibits to the jury and that all of these incidents collectively had the effect of ridiculing and belittling the defendant's case and of prejudicing it with the jury. No objection was taken, however, to any of the remarks of the court, no motion was made for a mistrial, nor was there any request from the defendant that the court charge the jury to disregard his remarks.

The first point argued by the defendant is that the trial court in preventing counsel for the defendant from arguing fully to the jury the force and effect of the exhibits in the case denied the defendant the due process of law guaranteed by the Federal Constitution. This constitutional question, it should be noted, is the defendant's sole basis for appealing to this Court, Const. Article VI, Section 5, paragraph 1(a). It is therefore significant to observe that the question was not raised either at the trial, on the motion for a new trial or before the Appellate Division, but is presented here for the first time. Our appellate courts are not bound to consider questions not raised below, even though they be constitutional questions, State ex rel. Wm. Eckelmann, Inc. v. Jones, 4 N.J. 207, 72 A.2d 322, rehearing denied, 4 N.J. 374, 72 A.2d 872, (Sup.Ct.1950); Mahnken v. Meltz, 97 N.J.L. 159, 116 A. 794, (E. & A.1922); Borough of Park Ridge v. Reynolds, 74 N.J.L. 449, 65 A. 990, (E. & A.1907) . If we follow precedent and refuse to consider the constitutional question now tradily raised, it follows that the defendant's entire appeal must fail for want of any right to come here. In this connection it should be pointed out, moreover, that the defendant has failed to comply with Rule 1:3--2(c): 'A statement of the questions involved, setting forth each question separately, in the briefest and most general terms, without names, dates, amounts or particulars of any kind. The entire statement should not ordinarily exceed 20 lines, must never exceed one page, and must be printed on a page by itself without any other matter appearing thereon. If the questions involved include any not presented to the court below, this fact shall be noted. The foregoing requirements are to be considered in the highest degree mandatory, admitting of no exception; ordinarily no...