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Wohlfarth v. Kellogg

Decided: May 17, 1950.

EDWARD J. WOHLFARTH, PLAINTIFF-RESPONDENT,
v.
SPENCER KELLOGG & SONS, INC., DEFENDANT-APPELLANT



Jacobs, Donges and Bigelow. The opinion of the court was delivered by Donges, J.A.D.

Donges

This is an appeal from a judgment of the Law Division of the Superior Court. The case was submitted to the jury and a verdict was rendered in favor of plaintiff.

It is unnecessary to elaborate on the facts of this case. The defendant is complaining that the judge's charge was erroneous.

At the conclusion of the charge by the trial Judge, the Judge made the following statement:

"I might say, Mr. Saunders, your request will not be charged in view of the fact that it was submitted to the Court after the summation of Counsel."

Mr. Saunders, defendant's attorney, replied as follows:

"May I note an exception to the charge?"

It is by virtue of this latter statement that defendant seeks a review of the Judge's charge and reversal of the judgment for alleged errors contained therein.

It has long been established in this State that a reversal on a general exception to a charge will not be granted, for alleged errors in a charge, where the charge contains several propositions of law, unless all are erroneous. Oliver v. Phelps , 20 N.J.L. 180 (Sup. Ct. 1943); Potts v. Clarke , 20 N.J.L. 536 (Sup. Ct. 1845); Simmons v. Lee , 117 N.J.L. 370 (E. & A. 1936).

It is the duty of the person taking exception to a Judge's charge, to point out the alleged defects and the reasons for his exceptions, in order to afford the judge an opportunity to correct the alleged errors.

This rule, although the mechanics are different, has been specifically incorporated in the Rules of Civil Procedure. Rule 3:51 provides in part as follows:

"No party may urge as error any portion of the charge or omission therefrom, unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to ...


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