Salvato v. N.J. Asphalt & Paving Co.

• Decision Date: 17 January 1947
• Docket Number: No. 46.,46.
• Parties: SALVATO v. NEW JERSEY ASPHALT & PAVING CO.
• Court: New Jersey Supreme Court

135 N.J.L. 185

50 A.2d 635

SALVATO

v.NEW JERSEY ASPHALT & PAVING CO.

No. 46.

Court of Errors and Appeals of New Jersey.

Jan. 17, 1947.

Appeal from Supreme Court.

Action by Frank Salvato against New Jersey Asphalt & Paving Company. From a judgment of the Supreme Court, 134 N.J.L. 362, 48 A.2d 286, reversing a judgment in favor of the plaintiff, the plaintiff appeals.

Judgment of Supreme Court reversed and judgment of Hudson County Common Pleas affirmed.

WACHENFELD, Justice, and DILL, Judge, dissenting.

Leo Rosenblum, of Jersey City, for plaintiff-appellant.

George D. McLaughlin, of Newark (Philip M. Lustbader, of Newark, of counsel), for defendant-respondent.

THE CHANCELLOR.

This is an action in negligence seeking damages for personal injuries sustained by the appellant while on the premises of the respondent when a steam boiler owned and operated by the respondent exploded. A jury in the Hudson Pleas returned a verdict in favor of the appellant and against the respondent for $8500.00 and costs, and a final judgment was entered thereon.

Prior to the rendition of this verdict the jury had previously come in and returned the following verdict:

‘The Foreman: Your Honor, we the jury find that the plaintiff, Frank Salvato, has cause for action in the amount of $5,000. plus medical, legal and court costs.'

The Court then instructed it as follows:

‘Well, the Court at this time might say to you, members of the jury, that your verdict must be in one sum and not carry with it any particular condition. You must determine that sum, including any hospital bills, medicines, other charges and expenses incurred by the plaintiff. So that you may return and consider of your verdict. But your verdict must be in a lump sum in which is included the medical expenses, hospital bills, doctors' bills and any other bills which have been submitted to you under the evidence.'

The jury retired again and returned the aforesaid verdict for $8500.00. Counsel for the respondent was not present when the verdicts were returned and the jury discharged. It was not until the next day that counsel asked for and was granted an exception by the trial court to the supplementary charge.

Application was made for a rule to show cause assigning the following reasons (1) the verdict was the result of bias, prejudice, passion, mistake and grossly excessive; (2) the verdict was contrary to the charge of the court and included an improper or illegal element of damage; (3) the verdict was excessive. A rule to show cause was allowed.

On the argument the second ground was withdrawn formally with the approval of the court and thus the exception was saved and is available on appeal. Molner v. Hildebrecht Ice Cream Co., 110 N.J.L. 246, 251, 164 A. 300; O'Neil v. Jacobus, 112 N.J.L. 145, at page 149, 169 A. 703. Cf. Cleary v. City of Camden, 119 N.J.L. 387, at page 389, 196 A. 455.

The learned trial court discharged the rule to show cause and found that the appellant sustained injuries which are of a serious and permanent nature which in his opinion justified the amount of the verdict and therefore the verdict was not excessive or the result of bias, prejudice, etc.

The respondent took an appeal to the Supreme Court and urged these two points (1) that the trial court erred in not stating to the jury in the supplemental instruction that legal and court costs were not recoverable, and (2) that the trial court abused its discretion in discharging the rule to show cause.

As to the first point the Supreme Court held that an exception taken to a charge after the jury had retired, considered its action under the charge, returned its verdict and been discharged is manifestly too late to serve its purpose, since the supplemental charge was delivered in open court at a time when counsel had the right and the opportunity to be in the court room, and his absence did not serve to curtail the trial court's province to give further instructions in open court as the occasion might demand. We concur in this holding and point out that the primary purpose of an exception to a charge is to call the attention of the trial court to his error at the time and in a manner conducive to its correction at the trial. The correction of such an error by an appellate court at some future time is a secondary consideration that grows out of the refusal of the trial court to correct its own errors. Lyon v. Fabricant, 113 N.J.L. 62, at page 65, 172 A. 567. We are constrained to observe that the supplemental charge as given sufficiently instructed the jury that the only costs that could be included in their verdict were those for medical, hospital and other expenses that were put in evidence at the trial. This would exclude legal expenses because there was no such proof before the jury.

As to the second point raised by the respondent the Supreme Court held that the trial court committed reversible error in discharging the rule to show cause. The reasons stated were that the only proof as to medical and hospital bills showed a total of $155.00, that the jury under the added instruction that it should incorporate its verdict in one lump sum could only bring in a verdict for $5155.00, and therefore the $3500.00 increase on the second verdict was excessive and the result of bias and prejudice. Such reasoning is based on the premise that the figure of $5000.00 in the first verdict was conclusive as to the damages that could be awarded for the injuries as such. We do not agree with such a conclusion.

The...