Wenner v. McEldowney & Co.

• Decision Date: 11 July 1968
• Docket Number: No. A--313--67,A--313--67
• Parties: Edwin Frederick WENNER, Plaintiff-Appellant, v. McELDOWNEY & COMPANY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 13

102 N.J.Super. 13

245 A.2d 208

Edwin Frederick WENNER, Plaintiff-Appellant, v. McELDOWNEY & COMPANY, Defendant-Respondent.

No. A--313--67.

Superior Court of New Jersey Appellate Division.

Argued June 10, 1968.

Decided July 11, 1968.

William G. Freeman, Haddonfield, for plaintiff-appellant, Edwin Frederick Wenner (Freeman & Freeman, Haddonfield, attorneys).

Michael P. King, Camden, for defendant-respondent, McEldowney & Co., (Kisselman, Devine, Deighan & Montano, Camden, attorneys).

Before Judges CONFORD, LABRECQUE and FULOP.

FULOP, J.S.C. (temporarily assigned).

This is an appeal from a judgment in favor of defendant entered by the trial court notwithstanding a jury verdict in favor of the plaintiff for damages in the sum of $30,000.

The plaintiff, Edwin Wenner, was hired by Belford Seabrook at an hourly wage to repair the roof of a carriage house situated on a farm owned by the defendant McEldowney & Company, a New Jersey corporation. Plaintiff alleges that when he reported to do the work Mr. Seabrook directed that the work be done under the supervision of his stepson, Craig McKinley. When plaintiff got up on the roof, McKinley allegedly negligently pushed a piece of wire on the end of a broomstick through an opening in the roof or under a shingle in such manner as to dislodge the plaintiff and cause him to fall to the ground. Plaintiff was injured.

Although plaintiff in his pleadings alleged other acts of negligence on the part of the defendant corporation, his proof was confined to the act of McKinley above referred to. Plaintiff contended that he was employed by Seabrook individually but that McKinley was acting for the defendant corporation. It was essential to plaintiff's recovery to establish that McKinley was the servant of the corporation and that plaintiff was not, for if they were both employed by the same employer plaintiff's remedy against the employer was confined to recovery under the Workmen's Compensation Act. R.S. 34:15--7, 8 and 9, N.J.S.A. See Freppon v. Hittner, 91 N.J.Super. 9, 218 A.2d 890 (App.Div.1966) and Mazzuchelli v. Silberberg, 29 N.J. 15, 148 A.2d 8 (1959).

At the end of the plaintiff's proof, defendant moved for involuntary dismissal. The motion was denied. At the end of the entire case the defendant moved for judgment in its favor. The trial judge reserved decision on this motion and submitted the case to the jury. The jury was asked to answer five interrogatories and render a general verdict as provided in R.R. 4:50--2. In answers to the interrogatories the jury found that McKinley was acting in the matter as the employee of the defendant Corporation and not as the employee of Seabrook and that Wenner and McKinley were not working for the same employer. The jury also found McKinley negligent and plaintiff not guilty of contributory negligence, and rendered a general verdict for the plaintiff in the sum of $30,000.

After the verdict, defendant orally renewed its motion for the disposition of the case in its favor by the court as a matter of law. The court again reserved decision. The trial was concluded on October 9, 1967. By letter dated October 17, 1967, the trial judge granted judgment in favor of the defendant notwithstanding the verdict. The court found that taking the evidence in the light most favorable to the plaintiff, it established that Wenner and McKinley were employed by the same employer whether the employer was Belford Seabrook individually or McEldowney & Company or both of them jointly and that there was no basis in the evidence warranting the jury finding that Seabrook employed Wenner individually and simultaneously employed McKinley on behalf of the corporation.

Plaintiff contends that it was error to enter judgment against him notwithstanding the verdict for the following reasons:

1. The trial judge had no power to enter judgment notwithstanding the verdict in the absence of a written motion as provided by R.R. 4:51--2(c).

2. R.R. 4:50--2 makes it mandatory that the judge enter judgment in accordance with the jury verdict where, as here, the answers to interrogatories given by the jury and the general verdict rendered by the jury are all consistent.

3. The verdict was supported by the evidence, there was a factual issue for the jury, and the court erroneously substituted its own appraisal of the facts for that of the jury.

As to the first point, plaintiff has misread the rule. R.R. 4:51--2(a) reads:

'(a) If a motion for judgment is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the verdict or within 10 days thereafter or if no verdict is returned, within 10 days after the jury's discharge. If the motion is denied and the case has been submitted to the jury, the motion may be renewed within 10 days after the verdict or the discharge of the jury. The court may enter judgment in accordance with the motion or, if the ends of justice so require, may order a new trial.'

When the court denies the motion for judgment made during the trial, it may be renewed after verdict. Such renewal of the motion must be in writing, on notice. R.R. 4:51--2(c). But when the court does not deny the motion at the trial but reserves decision thereon, it may decide it either before the verdict or within 10 days thereafter without any action by the parties. The first sentence of R.R. 4:51-- 2(a) clearly so intends. See Shaw v. Edward Hines Lumber Co., 249 F.2d 434 (7 Cir. 1957). If the motion is granted, the losing party may move as provided in R.R. 4:51--2(e).

The second point is based on the language of R.R. 4:50--2 which reads in part as follows:

'The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers. * * *'

The purposes of this rule are to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized. See Nylander v. Rogers, 41 N.J. 236, 196 A.2d 1 (1963); Terminal Construction Corp. v. Bergen County, 18 N.J. 294, at headnote 15, 113 A.2d 787 (1955); Marchese v. Monaco, 52 N.J.Super. 474, 145 A.2d 809 (App.Div.1958) certification denied 28 N.J. 565, 147 A.2d 609 (1959); Bleeker v. Trickolo, 89 N.J.Super. 502, 215 A.2d 571 (App.Div.1965); Bree v. Jalbert, 87 N.J.Super. 452, 209 A.2d 836 (Law Div.1965).

Nothing in this rule deals with the power of the court to grant a new trial or enter judgment notwithstanding the verdict. These powers are covered by other rules and the rules must be read together. It is neither practicable nor necessary for each rule to specify that it is subject to the provisions of other rules. R.R. 4:50--2 means that the court must 'direct the entry of the appropriate judgment upon the verdict and the answers to interrogatories' unless the verdict is erroneous as a matter of law or should otherwise be vacated under the court's powers and as provided by other rules.

A verdict supported by interrogatories is no more conclusive than a general verdict. See Myers v. Reading Co., 63 F.Supp. 817 (E.D.Pa.1945), affirmed 155 F.2d 523 (3 Cir. 1946) reversed 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615 (1947); Gross v. Gross, 169 F.2d 199 (7 Cir. 1948). In 35B C.J.S. Federal Civil Procedure § 1219 it is said:

'A motion for judgment notwithstanding the verdict may be granted where the jury's answers to certain interrogatories are false as a matter of law. The rules governing the construction of evidence for the purpose of determining a motion for judgment notwithstanding the verdict generally, discussed infra sec. 1224, apply to such a motion with respect to the jury's answers to interrogatories.'

R.R. 4:51--2 granting the power to enter judgment contrary to a jury verdict was first adopted in 1958. It is modeled after Federal Rule 50(b). Poland v. Parsekian, 81 N.J.Super. 395 at p. 401, 195 A.2d 660 (App.Div.1963) certification denied 41 N.J. 520, 197 A.2d 568 (1964). Both differ slightly from the common law motions Non obstante veredicto and in arrest of judgment. See Barron and Holtzoff (Wright), Federal Practice and Procedure, vol. 2B, sec. 1079 and note 62; 1 Bradner, New Jersey Law Practice, secs. 401--405 (1940).

In a much criticized 1913 opinion it was held that a Federal Court had no power to enter judgment Non obstante veredicto in favor of a party who had not moved for a directed verdict at the trial. Slocum v. New York Life Insurance Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879 (1913). However in Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636 (1935) the Supreme Court distinguished the Slocum case and held that in accordance with the practice at common law before the adoption of the Constitution, the court may reserve decision on a motion for directed verdict at the trial, take a verdict and enter a judgment notwithstanding the verdict if the court determines as a matter of law that the evidence was not sufficient to sustain the verdict. Federal Civil Practice Rule 50(b), as amended, provides that whenever a motion for a directed verdict is denied or for any reason is not granted, 'the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.' The practice of granting judgment notwithstanding the verdict has been sustained repeatedly....