Trovato v. Capozzi

• Decision Date: 26 December 1935
• Parties: TROVATO v. CAPOZZI.
• Court: New Jersey Circuit Court

182 A. 269

TROVATO

v. CAPOZZI.

Circuit Court of New Jersey, Essex County.

Dec. 26, 1935.

Action by Angelina Trovato, administratrix ad prosequendum of the estate of Ambrose Trovato, deceased, against Cosmo Capozzi. On application by plaintiff for order moulding the verdict for the plaintiff and rule to show cause why verdict should not be set aside and new trial ordered.

New trial ordered.

Joseph F. S. Fitzpatrick, of Jersey City, for plaintiff.

Collins & Corbin and Charles W. Broadhurst, all of Jersey City, for defendant.

PORTER, Judge.

This case was tried by the court and a jury on October 24, 1935. It is an action under the "Death Act" (2 Comp.St. 1910, pp. 1907, 1911, §§ 7, 9 and Comp.St.Supp. 1924. §§ 55—8, 55—10), based upon the charge of negligence.

The undisputed facts are that Ambrose Trovato and Cosmo Capozzi, together with two others, were riding in the' automobile of Capozzi when it overturned, and that Trovato was thrown from the car and instantly killed.

There was a sharp issue of fact presented by the testimony, as to whether Capozzi or the deceased, Trovato, was driving the car at the time of its being overturned. The plaintiff produced as a witness Rocco De-Lena who testified that he saw Capozzi, whom he knew by sight, driving the car immediately prior to its overturning. As against that testimony, the defendant and his two companions in the car testified that the deceased was driving.

The jury rendered a verdict in favor of the plaintiff, thus doubtless finding as a fact that the defendant was driving the car and was negligently doing so. The clerk, under instructions of the court, received the verdict in the absence of the court. The verdict was in these words:

"We find in favor of the plaintiff, Angelina Trovato, deceased, and against the defendant, Cosmo Capozzi, for the sum of nine thousand dollars ($9,000.00) damage, payable at the rate of fourteen dollars ($14.00) per week until the fund is exhausted."

Application by the plaintiff has been made for an order moulding the verdict by the elimination of the words "payable at the rate of $14 per week until the fund is exhausted," the contention being that the objectionable words are mere surplusage, that the error is but one of form, and that the real intention of the jury is to award a verdict of $9,000. Briefs have been submitted on that application.

There was applied for by the defendant, and allowed, a rule to show cause why the verdict should not be set aside and a new trial ordered on the ground that "the verdict is against the clear weight of the evidence on the question of whether or not the defendant, Cosmo Capozzi, was driving his automobile at the time of the alleged accident." Partial argument was heard on this rule, and decision was reserved until briefs were furnished and considered on the application for...