Vorhies v. Cannizzaro

• Decision Date: 05 April 1961
• Docket Number: No. A--27,A--27
• Citation: 169 A.2d 702,66 N.J.Super. 551
• Parties: Irene DeMarco VORHIES and LeRoy H. Vorhies, her husband, Plaintiffs,-Respondents, v. Sebastiano CANNIZZARO, impleaded as Benjamin Cannizzaro, t/a Ben's Beauty Shop and Barber Shop, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 551

66 N.J.Super. 551

169 A.2d 702

Irene DeMarco VORHIES and LeRoy H. Vorhies, her husbandPlaintiffs,-Respondents, v.Sebastiano CANNIZZARO, impleaded as Benjamin Cannizzaro, t/a Ben's Beauty Shop and Barber Shop, Defendant-Appellant.

No. A--27.

Superior Court of New Jersey Appellate Division.

Argued March 28, 1961.

Decided April 5, 1961.

Francis J. Lutz, Newark, for appellant(Mead, Gleeson, Hansen & Pantages, Newark, attorneys).

Ralph S. Heuser, Matawan, for respondents(Norman J. Currie, Keyport, attorney; Heuser, Heuser & De Maio, Matawan, of counsel).

Before Judges GOLDMANN, FOLEY and LEWIS.

The opinion of the court was delivered by

FOLEY, J.A.D.

With our leave defendant appeals from the interlocutory order of the Monmouth County District Court granting a new trial after a jury verdict of no cause of action.SeeR.R. 2:2--3.

The suit was brought by Mrs. Vorhies to recover damages for personal injuries; her husband asserted a claim Per quod.The action arose from an accident which occurred on June 24, 1959 at about 2:00 P.M. in the entranceway of defendant's barber shop located at 161 Main Street, Keansburg, New Jersey.The store is of conventional design.The doorway, set back a few feet from the sidewalk proper, divides two windows which front upon the public sidewalk, and glass panels, set at an angle, are on both sides of the entrance.There was a rubber mat directly in front of the door.Mrs. Vorhies, intending to have a haircut, had turned from the sidewalk into the entranceway, and was approaching the mat when she slipped, lost her balance, and fell.As she did, her head struck the window sill and her right arm went through one of the glass panels.She said she was about two feet from the mat when she fell.

On both direct and cross-examination she testified that she did not know what caused her to slip.Defendant, who did not witness the occurrence, was called from the rear of the store by an employee, Paul Toro.He noticed that Mrs. Vorhies' hand and arm were bleeding profusely and took her to the office of a doctor nearby, where here wounds were treated and bandaged.

Upon their return to the shop they had a conversation in the course of which, according to Mrs. Vorhies, defendant pointed to some small rubber nodules which had been worn loose from the mat and were lying on the walk, and ventured the opinion that these were the cause of her fall.Defendant conceded the conversation, but denied that he had attributed the accident to the nodules.

Either later that day or on the following morning, LeRoy Vorhies visited defendant at the barber shop.He testified that defendant'was very persistent that she had slipped on these little rubber things off the mat.'Defendant's denial of this statement was oblique.He said that he did not intimate that he was at fault for the accident; but he conceded that the condition of the mat had been deteriorating for some time and that nodules did come loose from it.These he said, were swept into the street by toro, and he testified that Toro had swept the entranceway shortly before the accident occurred.This, Toro confirmed.Toro also testified that while sweeping the floor of the store he saw Mrs. Vorhies fall three feet from the mat, that she was wearing high heels and carried a pocketbook, and that after his employer and plaintiff left for the doctor's office, he picked up a bottle of pills which plaintiff'had in her hand.'

Defendant testified that the concrete of which the sidewalk and entranceway were made contained blue stone, rather than gravel, and a photograph in evidence indicates that the sidewalk has the mottled and uneven surface which is characteristic of this type of construction.

The issues of negligence and proximate cause were properly submitted to the jury.Advisedly, in light of the evidence adduced, the trial judge instructed the jury on the effect of circumstantial evidence.In that connection he charged:

'In the absence of direct evidence, it is incumbent upon the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference that the injury was caused by the wrongful act of the defendant and would exclude the idea that it was due to a cause with which the defendant was unconnected.

'While proof of certainty is not required, the evidence must be such as to justify an inference of probability as distinguished from mere possibility of the negligence on the part of a defendant.'

In setting aside the jury verdict the court said:

'The Court inclines to the view that a verdict cannot be sustained upon a theory contrary to the one on which it was tried.Such a verdict would of necessity be against the weight of the evidence, as it would go beyond and ignore the theory and facts upon which the case was tried.

'Counsel for defendant, in his memorandum, admits that the plaintiffs' proofs showed a little more than the mere occurrence and with this, the Court agrees.However, a close examination of the summation by defendant's counsel will disclose argument indicating proximate cause to have been the result of certain possibilities not supported in fact and not within the rule of fair comment.Additionally, considerable comment adverse to the plaintiffs was made by defense counsel, during his summation, again not supported in fact, in exhorting the jury to draw certain inferences that because of the failure of certain of plaintiffs' witnesses to appear, their testimony would have been unfavorable to the plaintiffs.'

It is plain from this that the rationale of the court's order was not that the verdict was so contrary to the weight of the evidence that it clearly and convincingly appeared to have been the result of mistake, partiallity, prejudice or passion, as is required by R.R. 4:61--1(a), but rather, that the argument of defendant's attorney in his summation was Improper, and had so diverted the minds of the jury from the issues in the case that the verdict was arrived at by mistake.This would, of course, furnish adequate reason for nullifying the verdict if the summation was improper, and the court was convinced that the impropriety influenced the verdict.

The portions of the summation which the court found to be beyond the range of fair comment are in two categories.In discussing the happening of the accident the attorney said:

'The important thing is, ladies and gentlemen, first of all the important thing is that Mrs. Vorhies does not know what she fell on and I think you ladies and gentlemen know that the human body is rather frail at times and there are any number of reasons that could have caused Mrs. Vorhies to fall, not necessarily any small rubber particles.She could have fallen on that sidewalk, that is a possibility.'

At this point plaintiffs' attorney voiced the objection that 'the law does not deal with possibilities.'The judge permitted the defendant to proceed, observing that he would 'instruct the jury in that regard when we come to it as to what they may consider.'Defendant's attorney continued:

'Now, as I said, ladies and gentlemen, there are any number of reasons which could have caused her to fall, and I say that the body is rather frail, that people fall every day.The woman was wearing high heels--the testimony shows that--she had something in her hand, and she had a pocketbook, and she had some pills and these pills were still in her hand, apparently, at the time that she fell.She could have been unduly concerned over these things and she could have, as a lot of people do, could have simply fallen on the sidewalk without regard to any dangerous condition which was on the premises she said she fell at, and that is it.'

In commenting on plaintiffs' damages, defendant's attorney noted that she had testified that when she returned to work as hostess in three 'Diner' establishments, she was unable to perform her duties because of her injuries, and after working for one day was laid off by her employer, who 'felt (she) should stay home until it healed up'; that she was engaged by a Mr. Walling, a contractor, to do typing work but was so hampered by her injuries that she left after two days; and that subsequently she was employed as a cashier and packer by the 'Grand Union,' but was discharged after one day because while 'bundling' a package she dropped a bottle of vinegar.The attorney then remarked that none of the employers mentioned by plaintiff had been called to corroborate her testimony in this regard, and went on to say:

'* * * we have the name of the Paramount Diner as where she went as the testimony indicates to get a job and she said that she talked to someone, the employer, the man who had been her employer at the Paramount Diner, and I asked if he was in court.No, he is not in court.He had an opportunity, the plaintiff had an opportunity to bring him in court Wednesday and they had another opportunity to bring him in court today.But, do you see him?No.There is not a shred of corroboration to that story as to attempting to go back to work at the Paramount Diner.

'And that is not all.She also stated that she attempted to get a job at the Grand Union, and stated that she spoke to someone at the Grand Union and was forced to discontinue her...