Robinson v. Payne

• Decision Date: 19 November 1923
• Docket Number: No. 82.,82.
• Citation: 122 A. 882
• Parties: ROBINSON v. PAYNE, Director General of Railroads.
• Court: New Jersey Supreme Court

122 A. 882

ROBINSON

v. PAYNE, Director General of Railroads.

No. 82.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1923.

(Syllabus by the Court.)

Appeal from Supreme Court.

Suit by Violet M. Robinson against John Barton Payne, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Affirmed.

Frederic B. Scott, of New York City, for appellant.

Jacob L. Newman and Lionel P. Kristeller, both of Newark, for respondent.

TRENCHARD, J. Violet M. Robinson sued in the Supreme Court to recover damages for injuries sustained while a passenger on a train of the Delaware, Lackawanna & Western Railroad Company operated by the Director General of Railroads. The cause was referred by the Chief Justice to a circuit court judge for trial pursuant to chapter 118 of P. L. 1906. The trial at the Essex circuit resulted in a verdict in favor of the plaintiff for $5,000. Thereupon the defendant obtained a rule to show cause why that verdict should not be set aside, with the resuit that the rule was "made absolute on the matter of damages only, and that the venire de novo do issue for the trial of the cause of action of the plaintiff, Violet M. Robinson, as to damages only." When the second trial was moved, the defendant objected to a retrial on the question of damages only, on the ground that it deprived him of his right under both the federal and state Constitutions to have the question of liability and the question of damages determined by one and the same jury. The objection was overruled, and the case was tried, both the plaintiff and defendant producing evidence on the question of damages largely additional to that at the first trial. The verdict was again against the defendant, and for a larger amount, and he appeals from the consequent judgment.

We are of the opinion that the Supreme Court has power, on a rule to show cause obtained by the defendant, to grant a new trial as to damages only, when, as here, the only question with respect to which the verdict is wrong is the quantum of damages and that question is separable; and that the exercise of that power does not violate the provisions of either the federal or state Constitution respecting the right of trial by jury.

By rules 72 and 73 of the Practice Act of 1912 (now rules 131 and 132 of the Supreme Court), the Legislature declared that—

"72. In case a new trial is granted it shall only be a new trial of the question or questions with respect to which the verdict or decision is found to be wrong, if separable.

"73. When a new trial is ordered because the damages are excessive or inadequate, and for no other reason, the verdict shall be set aside only in respect of damages, and shall stand good in all other respects." Comp. St. Supp. 1911-1915, p. 1224.

No doubt these statutory provisions were enacted in this state, and somewhat similar ones in other states, because of the apparent conflict of opinion in this country as to the power of the courts to grant a partial new trial under the common law.

An examination of the opinions in Yazoo, etc., R. Co. v. Scott, 108 Miss. 871, 67 South. 491, L. R. A. 1915E, 239, Ann. Cas. 1917E, 880, and Simmons v. Fish, 210 Mass. 563, 97 N. E. 102, Ann. Cas. 1912D, 588, and of the notes appended thereto, shows that the proper exercise of the power conferred by such statutes is very generally held not to deprive a party of any of his constitutional rights.

In our own state both trial courts and appellate courts have exercised the powers conferred by the rules in question.

In Gaffney v. Illingsworth, 90 N. J. Law, 490, 101 Atl. 243 (in this court on appeal from the Essex circuit court in a tort case), in disposing of the grounds of appeal, (a) that the trial court had no power to set aside the verdict as inadequate and grant a new trial as to damages only, and (b) that the trial court had no power to couple the rule to show cause with the terms that it did, this court said:

"The appropriateness and applicability of these rules [rules 72, 73, of the Practice Act of 1912, now 131, 132, of the Rules of the Supreme Court] cannot be doubted. Therefore, the trial judge had the right to grant a new trial on the sole question of the inadequacy of the damages by virtue of the statute and rules mentioned, the question of damages being clearly separable from that of liability."

In Young v. Society, etc., 91 N. J. Law, 310, 102 Atl. 358 (in this court on appeal from the Essex county circuit court in an action upon contract), this court, in reversing the judgment, referred again to rule 131, and concluded its opinion as follows:

"The only question with respect to which the decision is found to be wrong is the measure of damages. Since that question is here separable, the new, trial is limited thereto, pursuant to rule 131,' made applicable to appeals by rule 147."

In Spencer Heating Co. v. Abbott, 91 N. J. Law, 594, 104 Atl. 91 (in this court on appeal from the Mercer county circuit court in an action upon contract), this court, in reversing the judgment, concluded its opinion precisely as in the case last cited.

The case of Queen v. Jennings, 93 N. J. Law, 353, 108 Atl. 379 (in the Supreme Court in an action upon contract) was upon a rule to show cause, obtained by the defendant, why a verdict in favor of the plaintiff should not be set aside and a new trial granted, and the Supreme Court, at the conclusion of the opinion, said:

"That the verdict must be supported by the evidence is elementary. But under the Practice Act (Pamph. L. 1912, p. 397, pars. 72, 73), a new trial shall only be granted of the question or questions with respect to which the verdict or decision is found to be wrong, if separable or when the new trial is ordered, because the damages are excessive or inadequate, and for no other reason, the verdict shall be set aside only in respect of the damages, and shall stand good in all other respects. This case is within the provisions of that act. * * * The only question with respect to which the verdict is found to be wrong is the measure of damages. The rule will be discharged as to liability; a new trial will be granted, but limited to the question of damages only; the verdict shall stand good in all other respects."

In Giardinl v. McAdoo, 93 N. J. Law, 138, 107 Atl. 437 (in this court on appeal from the Camden circuit court in a tort action), it was found that the verdict was excessive because an incorrect rule of damages had been laid down in the court below, and rule 132 was there again recognized and applied.

It is therefore apparent that, both on applications to set aside verdicts in trial courts, and in awarding a new trial on reversal in appellate courts, in cases where the only question with respect to which the verdict or judgment is wrong is the quantum or measure of damages, and that question is separable, our courts have frequently limited new trials to the question of damages, pursuant to rules 131 and 132 of the Supreme Court made applicable to appeals by rule 147.

But the defendant-appellant says that our courts have not thus far dealt with the constitutional questions now presented, and since that seems to be so, we now proceed to examine and decide those questions.

As we have seen, the defendant contends that he was denied a right guaranteed him by both the federal and state Constitutions to have the question of liability and the question of damages determined by one and the same jury.

It is quite clear that his right under the federal Constitution was not invaded.

The Constitution of the United States, by article 7 of the Amendments, provides, inter alia, that "the right of trial by jury shall be preserved,"

In Walker v. New Mexico, etc., R. R. Co., 165 U. S. 593, 17 Sup. Ct. 421, 41 L. Ed. 837, the United States Supreme Court, in holding that a somewhat similar state statute was not in violation of that Amendment, pointed out that the aim of the Amendment is not to preserve mere matters of form and procedure, but substance of right; that so long as this substance of right is preserved the procedure by which this result shall be reached is wholly within the discretion of the Legislature; and that legislative provisions in this respect will not be set aside because the form of action—the mere manner in which the question is submitted—is different from that which obtained at the common law. And in a case which went to the United States Supreme Court from this state (Brown v. New Jersey, 175 U. S. 1743, 20 Sup. Ct. 77, 44 L. Ed. 119) it was held that the first ten amendmen...