Rowland v. Wunderlick
Decision Date | 03 August 1934 |
Docket Number | No. 434.,434. |
Citation | 174 A. 168 |
Parties | ROWLAND v. WUNDERLICK. |
Court | New Jersey Supreme Court |
Appeal from First District Court of Paterson.
Action by William J. Rowland against Albert Wunderlick. Judgment for plaintiff, and defendant appeals.
Reversed, and new trial awarded.
Argued May term, 1934, before LLOYD, CASE, and DONGES, JJ.
Edward A. Markley and Patrick F. McDevitt, both of Jersey City, for appellant.
M. Metz Cohn, of Paterson, for respondent.
Plaintiff sued for injuries received from the bite of a dog belonging to the defendant. Knowledge on the part of the defendant, technically known as scienter, of the alleged vicious propensities of the dog was specifically alleged in the state of demand, and the denial thereof by defendant's attorney at the opening made that the main issue. There was evidence pro and con. At the close of the trial the court's entire charge to the jury was as follows:
The jury then retired. Defendant's attorney forthwith requested the court to charge the jury on the fundamental principles of law dealing with scienter. The court refused to charge the jury thereon. Exception was taken to the refusal.
Subsequently plaintiff's attorney requested that chapter 427 of the Laws of 1933 (N. J. St. Annual 1934, § 7—211b) be read to the jury, whereupon the judge, accompanied by both counsel and the stenographer, entered the jury room and read to the jury that statute as follows:
The action of the court in that respect was also excepted to on behalf of defendant. Verdict went for the plaintiff, and from the judgment thereon defendant appeals presenting four points, of which the second is that the court erred in refusing to charge the jury the law with regard to scienter, and the third is that the court erred in reading the abovementioned statute to the jury.
Scienter was an essential element in the case, made so both by the issue specifical]y presented and by the fundamental law. Angus v. Radin, 5 N. J. Law, 815, 8 Am. Dec. 626; Emmons v. Stevane, 77 N. J. Law, 570, 73 A. 544, 24 L. R. A. (N. S.) 458, 18 Ann. Cas. 812; Eberling v. Mutillod, 90 N. J. Law, 478, 101 A. 519. That fact is so obvious that no charge, if it undertook to instruct the jury at all upon the law of the case, could well omit reference to the subject. Whether the directing of the court's attention to the omission should have been made before the jury retired is not of...
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...Shea, 114 N.J.L. 235, 176 A. 390 (Sup.Ct.1935); Kruschka v. Konvitz, 13 N.J.Misc. 299, 177 A. 839 (Sup.Ct.1935); Rowland v. Wunderlick, 113 N.J.L. 223, 174 A. 168 (Sup.Ct.1934). Where the life or liberty of an individual is at stake no less liberal rule can be applied. Such is the plain imp......
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...very existence of the trial by jury.' Talmage v. Davenport, 31 N.J.L. 561 (E. & A.1864). More recently in Rowland v. Wunderlick, 113 N.J.L. 223, 226, 174 A. 168, 169 (Sup.Ct.1934), it was remarked: 'It has, from time immemorial, been the practice of the judge, at the close of a trial, to gi......
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