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Paolercio v. Wright

Decided: June 30, 1949.


On appeal from the former Union County Circuit Court.

For reversal in part and affirmance in part -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. Opposed -- None. The opinion of the court was delivered by Wachenfeld, J.


On January 7, 1945, defendant-respondent Richard A. Wright was driving a Nash roadster south on Prospect Avenue, West Orange. At the same time and place a Cadillac owned by John A. Paolercio and driven by Angelo Donofrio, the appellants, was proceeding north. The road was covered with ice and snow. The Cadillac passed two snow plows which were also proceeding north in the righthand or east lane of the highway. The driver of the Cadillac says he passed the snow plows and returned his car to the east lane some time before the accident took place. The driver of the Nash says the oncoming Cadillac remained in the west lane and that in order to try to avoid a collision he at the last minute swerved his Nash to the left side of the road, causing the Nash to skid sideways, and that the Cadillac struck his car in the right side.

The Nash roadster had, in addition to the driver, six passengers, four of them in the front seat with the driver. The Cadillac had two passengers in addition to the driver.

Damages was done to both automobiles and injuries were sustained by some of the passengers. Paolercio and Donofrio, owner and driver, respectively, of the Cadillac, sued Wright, owner and driver of the Nash, for damages to their car and for injuries suffered by Donofrio. The passengers in the Cadillac car also sued Wright for injuries sustained. Five of the passengers in the Nash sued their own driver, Wright, and the driver and owner of the Cadillac for their injuries, one of these actions later being discontinued. Fathers of certain minor passengers in the Nash sued both drivers and the owner of the Cadillac for expenses and loss of services occasioned by reason of the injuries sustained by their children. Wright, the driver of the Nash, filed a counterclaim against the owner and driver of the Cadillac for damages to his car.

By an order of the court, all of these suits were consolidated and tried at the same time in Union County. The jury by its verdict found no cause of action in the suit by Paolercio and Donofrio against Wright, but found a verdict against

Paolercio and Donofrio in favor of Wright on his counterclaim for damages to the Nash. In the suit by the Cadillac passengers against Wright, a voluntary nonsuit was taken as to one of the plaintiffs and as to the other the jury found no cause of action. In the suits by the passengers in the Nash and their parents, the jury found verdicts of no cause of action against their own driver, Wright, but found verdicts in their favor against Paolercio and Donofrio. In the judgments returned for the parents, the verdicts, instead of naming a sum of money, were for "out-of-pocket" money. A motion was subsequently made by the attorneys for the parents to the trial judge to mold the verdicts by substituting certain sums representing their expenses occasioned by the accident for the "out-of-pocket" money awarded by the jury's verdict. This motion was denied. Another motion was made to the trial judge by Paolercio and Donofrio to set aside all of the verdicts returned. This motion was also denied. Judgments were entered on each verdict for the amounts found by the jury and, in the case of the parents, for "out-of-pocket" moneys and costs.

The appellants' main arguments are there was error in the trial judge's denying the motion to set aside the verdicts as irregular and improper, the trial court erred in denying specific requests to charge and in refusing to grant a motion for a directed verdict in favor of the appellants against the respondent Wright on his counterclaim.

The motion to set aside the verdicts was directed to all of the verdicts returned by the jury. A new trial is asked on the ground that the failure to specify a sum certain as damages to be awarded to certain of the plaintiffs and the substitution of "out-of-pocket" money rendered the whole verdict improper, irregular and incomplete.

Actually there was not one verdict returned by the jury but several in separate cases which had been consolidated for trial simply as a time-saving device to preclude a series of separate trials based on the same general facts growing out of the same accident. The fact that certain verdicts were incomplete and improper does not of itself vitiate the others.

It is conceded by all counsel that it will be necessary to have a new trial in the cases of the parents' actions against the appellants, Paolercio and Donofrio, since the verdicts returned by the jury in those actions do not set forth ...

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