Trovato v. Capozzi

• Decision Date: 26 October 1937
• Docket Number: No. 40.,40.
• Citation: 119 N.J.L. 147,194 A. 611
• Parties: TROVATO v. CAPOZZI.
• Court: New Jersey Supreme Court

194 A. 611

119 N.J.L. 147

TROVATO

v. CAPOZZI.

No. 40.

Court of Errors and Appeals of New Jersey.

Oct. 26, 1937.

Syllabus by the Court.

1. It will be presumed, where an order granting a new trial does not show the specific ground on which it was granted, that all of the grounds specified in the motion were considered by the trial court, and that the motion was sustained on every ground stated therein.

2. The fundamental rule is, that in granting or refusing a new trial, the trial court is exercising a discretionary power and that its discretion is not ordinarily reviewable on appeal.

Appeal from Circuit Court, Essex County.

Action by Angelina Trovato, administratrix ad prosequendum of the estate of Ambrose Trovato, deceased, against Cosmo Capozzi, tried four times, wherein new trial was ordered after verdict in the third trial and there was judgment on a verdict for plaintiff in the fourth trial. From an order making rule to show cause why-new trial should not be granted absolute after verdict in the third trial, defendant appeals.

Affirmed.

Collins & Corbin, Edward A. Markley, and Charles W. Broadhurst, all of Jersey City, for defendant-appellant. Joseph F. S. Fitzpatrick, of Jersey City, for plaintiff-respondent.

WOLFSKEIL, Judge.

This suit was brought under the Death Act to recover for the pecuniary loss sustained by the next of kin of Ambrose Trovato, who was killed while an occupant of an automobile owned by the defendant. The sole issue contested was the question as to who was driving the car, the defendant or Trovato.

On the day of the fatal accident, it appears that the defendant, with the deceased and two companions, started out in an automobile, stopped at a turkish bath in Newark, and then at several taverns where the party consumed beer and liquor.

Immediately prior to the accident, the car was seen by the witness De Lena, as it was passing the entrance to a golf club where the witness, in question had been working as a caddy. He testified that the defendant and not the deceased was driving. There were four trials, and on each occasion the plaintiff's case, as to who was driving the car, depended on the testimony of this same witness. On cross-examination by appellant's counsel, his credibility was affected to some degree; yet two juries believed him, one did not, and one disagreed. As against this the defense witnesses who saw the happening said that the decedent was the driver of the car. This testimony was evidently rejected by the jury because most of these witnesses were friends of the defendant. The appellant, after an unfavorable verdict in the fourth trial, did not see fit to challenge the finding of fact on rule to show cause before the trial court, or...