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Rossman v. Newbon

Decided: January 12, 1934.

CARRIE M. ROSSMAN, PLAINTIFF-RESPONDENT,
v.
WALTER NEWBON, DEFENDANT, AND HENRY DUBOIS AND LAUTER PIANO COMPANY, DEFENDANTS-APPELLANTS; JOHN A. BOEHME AND EDNA D. BOEHME, PLAINTIFFS-RESPONDENTS, V. WALTER NEWBON, DEFENDANT, AND HENRY DUBOIS AND LAUTER PIANO COMPANY, DEFENDANTS-APPELLANTS



On appeals from judgments of the Supreme Courts.

For the appellants, Applegate, Stevens, Foster & Reussille (Lester C. Leonard, of counsel).

For the respondents, Kremer & Proctor (Ward Kremer, of counsel).

Heher

The opinion of the court was delivered by

HEHER, J. These actions are in tort. Respondents Carrie M. Rossman and Edna D. Boehme suffered physical injuries

as a result, it is claimed, of the negligence of appellants in the operation of their respective motor vehicles. An automobile owned and operated by defendant Newbon and one operated by appellant DuBois, an agent of appellant Lauter Piano Company, collided on a public highway. They seek the recovery of the resultant damages. John A. Boehme, the husband of Edna, sues to recover the damages consequent upon the injuries to his wife. There were two trials of the actions. The first resulted in a verdict by the jury in favor of Carrie M. Rossman for $63.06, and in favor of Edna D. Boehme, for $201.06. The verdict was silent in respect of the cause of action pleaded by John A. Boehme.

Judge Lawrence granted respondent, Carrie M. Rossman, a rule to show cause why the verdict in her favor should not be set aside in respect of damages only. He allowed a like rule to respondents Edna D. and John A. Boehme. Appellants were also allowed, in each cause, a rule to show cause why the verdict should not be set aside and a new trial granted. They assigned as a reason for the granting of a new trial that the verdict was against the weight of the evidence. The rule allowed to Carrie M. Rossman was made absolute, and a new trial was awarded as to damages only. Interpreting the verdict in the Boehme case as in favor of both plaintiffs on the issue of liability, based upon the negligence of appellants, as charged in the complaint, the trial judge awarded a new trial to both plaintiffs, limited to the ascertainment of the damages sustained. The rules allowed to appellants were discharged.

The retrial of the actions resulted in a verdict of $7,000 for Carrie M. Rossman (reduced by the trial judge on rule to show cause to $5,750); $3,000 for Edna D. Boehme (reduced by the trial judge to $2,500), and $495 for John A. Boehme. These appeals are from the judgments entered thereon.

The single question presented by the grounds of appeal in each cause is the propriety of the award to respondent of a new trial in respect of damages only. The contention seems to be that, inasmuch as all parties expressed dissatisfaction with the verdict, and sought a new trial of the action, a retrial

of all the issues should have been ordered. But the action complained of cannot, on the ground stated, be reviewed on appeal. Rule 131 of the Supreme Court directs that in case a new trial is granted, it shall only be a new trial of the question or questions with respect to which the verdict or decision is found to be wrong, if separable. Rule 132 provides that when a new trial is ordered because the damages are excessive or inadequate, and for no other reason, the verdict shall be set aside only in respect of damages, and shall stand good in all other respects. The exercise of the power conferred by these rules rests in the sound discretion of the court, and the action taken will not be reviewed on appeal. Gormley v. Gasiorowski, 110 N.J.L. 287.

Assuming, without deciding, that this court has the power to interfere in the event of an abuse of discretion (see Gormley v. Gasiorowski, supra), we find no such abuse in the ruling complained of. The parties may terminate a suit by consent, but it is not within their province, when for one reason or another they are dissatisfied with the verdict, to set it aside, for the purpose of a retrial of the issue, by joining in an application for a new trial. When a new trial is necessary, it should be limited to the question with respect to which the verdict is found to be wrong, if separable, and if the error ...


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