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Pollack v. New Jersey Bell Telephone Co.

Decided: November 12, 1935.

ALICE POLLACK, PLAINTIFF-RESPONDENT,
v.
NEW JERSEY BELL TELEPHONE COMPANY, A CORPORATION, DEFENDANT-APPELLANT



On appeals from judgments of the Second District Court of the city of Newark.

For the appellant, Smith & Slingerland.

For the respondent, Edward J. Abromson.

Before Justices Trenchard, Heher and Perskie.

Heher

The opinion of the court was delivered by

HEHER, J. Plaintiff instituted two separate actions to recover damages for injuries to her person and

property, asserted to have proximately resulted from defendant's negligence in the operation, on October 16th, 1933, of one of its motor trucks at the intersection of Rahway avenue and DeHart Place, in the city of Elizabeth. The District Court judge, sitting without a jury, resolved the issues in her favor; and from the consequent judgments defendant appeals. A stenographic transcript of the proceedings and testimony adduced has been certified as the state of the case. Pamph. L. 1905, p. 259. See Paonessa v. Ruh, 78 N.J.L. 253.

As the first ground for reversal, appellant urges error "in giving judgment for the plaintiff when there was no proof to support a finding of fact that the defendant was guilty of negligence."

There is a preliminary procedural question, raised by respondent, to be considered. The sufficiency of this assignment is challenged. It is said that it points to "no judicial action to be reviewed;" and reliance is placed upon the case of Klein v. Shryer, 106 N.J.L. 432. But the doctrine of that case is not applicable. While it was there held that a specification asserting the entire lack of "legal evidence to support the judgment * * * points to no judicial action to be reviewed," the judgment under review was entered upon a jury verdict, and in such cases quite different considerations apply.

Chapter 62 of the laws of 1916 (Pamph. L. 1916, p. 109) provides, inter alia, that, "where causes are submitted to the court to be heard without a jury, any error made by the court in giving final judgment in the cause shall be subject to change, modification or reversal without the grounds of objection having been specifically submitted to the court." It is now settled that, in virtue of this provision, "it is not necessary for a party to request the court, in cases where a jury is waived, to make specific findings of law or fact, or law and fact. It is sufficient if he claims judgment in his favor upon testimony adduced upon the trial. * * * A judgment presupposes a finding of facts in favor of the successful party, even if such finding be not expressed in terms, and also presupposes that, in the opinion of the judge, that party is entitled to the judgment by the law arising upon the facts."

Smith v. Cruse, 101 N.J.L. 82. This supplement to the Practice act permits of a review "of any errors of law residing in the findings of the trial judge, provided they shall be specified in grounds of appeal filed and served," as required by the rules of the court. Pannonia Building and Loan Association v. West Side Trust Co., 93 Id. 377, 381. This statute is applicable only to errors residing in the final judgment itself, as distinguished from those occurring during the course of the trial. General Equipment Co. v. Zein, 10 N.J. Mis. R. 443; ...


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