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Lyon v. Fabricant

Decided: May 4, 1934.

RAYMOND I. LYON, JR., ET AL, RESPONDENTS,
v.
MAX FABRICANT AND JOSEPH PRUPIS, APPELLANTS



On defendants' appeal from the Supreme Court, whose per curiam opinion, affirming a judgment for plaintiffs in the Common Pleas, is printed in 12 N.J. Mis. R. 39; 169 A. 548.

For the appellants, Henry Pomerehne.

For the respondents, Walter A. Beers.

Parker

The opinion of the court was delivered by

PARKER, J. The case arises out of a midnight collision between automobiles, at Fallsington in Pennsylvania, a few miles from Trenton and on the main road from Philadelphia to Trenton. The circumstances of the accident, as the jury were entitled to find them, are sufficiently stated in the per curiam opinion of the Supreme Court, ubi supra. The same points are made here that were argued before the Supreme Court. With regard to the refusal of the trial court to nonsuit, we concur in the view of that court, and have nothing to add. The same may be said as to the refusal to direct a verdict, though it may as well be pointed out in addition that

the point relating to an exhibit, which was argued in the Supreme Court and is again argued here, was not made in the trial court on either the motion to nonsuit or the motion to direct a verdict, and consequently is unavailable on appeal.

This brings us to the exceptions to the charge. The Supreme Court refused to consider these on the merits, because counsel had not stated to the trial court why he objected to the language of the charge, "nor pointed out with any particularity the error in the charge as delivered, so that the court might have an opportunity, if it was error, to correct it." Certain decisions are cited in the opinion as supporting that refusal, and will be presently considered. As we read the opinion, it does not question but that counsel, in taking his exceptions, indicated adequately the language in the charge that he deemed to be erroneous and that he wished to challenge. We have examined the language of the exceptions as taken, and readily recognize it as indicating the passages in the charge quoted in the grounds of appeal. But the ruling of the Supreme Court seems to be on a different ground, namely, that counsel when excepting must not only sufficiently indicate the language challenged, but state to the trial court the reason why it is claimed to be erroneous. But this, we think, is not the correct rule, as regards instructions to the jury. In the reception of evidence, where an objection is made, the reason for such objection must be given, otherwise the objection, and an exception predicated thereon, are of no avail if the evidence is received. But on the other hand, if the court exclude the question, counsel propounding it may enter his exception without assigning any reason in support of such question or other evidence, unless perhaps the court asks for such reason. All this is every day practice. If written requests to charge are duly submitted, and refused, the party submitting them may enter his exception without further ado; and this is also every day practice.

The same practice obtains where the court charges the jury. Counsel may not interrupt, unless by permission. At the conclusion of the charge, and usually after the jury have gone out, although the practice varies locally, counsel

dissenting from any of the instructions given to the jury formulates and states his exceptions thereto, reproducing as nearly as may be the language excepted to. This, as has many times been pointed out, is to notify the trial judge that his ruling is to be made a ground of appeal, and so that he may revise it if desired. See, for example, Kargman v. Carlo, 85 N.J.L. 632, 636.

The cases cited by the Supreme Court do not support the proposition enunciated by that court in this case. They are as follows:

In Potts v. Clarke, 20 N.J.L. 536, a Supreme Court case, the decision was simply that exceptions to a charge must be specific in pointing out the particular propositions to be challenged. In that ...


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