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Hager v. Weber

Decided: May 21, 1951.


On appeal from the Appellate Division of the Superior Court, whose opinion is reported in 8 N.J. Super. 252.

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


[7 NJ Page 204] There was a judgment of $6,500 for plaintiff on a jury verdict returned in the Middlesex County Court in an action in tort for negligence; and on defendant's appeal the Appellate Division of the Superior Court found that the verdict was "clearly excessive" and accordingly reduced the award to $3,500, with direction for a new trial as to damages if plaintiff should refuse consent to the reduction. The trial judge had denied a motion for a new trial on the asserted

ground that "the judgment is against the weight of the evidence and is excessive and resulted from mistake, passion or prejudice." Only the quantum of the verdict was under attack in the Appellate Division.

We certified the cause for appeal on plaintiff's motion.

It was argued at the outset that Rule 3:59-5 "does not abolish the trial court's discretionary power to pass upon a jury's verdict on motion for a new trial," and the action of the trial judge in that regard is unassailable except for a "plain abuse of discretion," in keeping with the doctrine of Nelson v. Eastern Air Lines, Inc., 128 N.J.L. 46 (E. & A. 1942), followed by this court in Batts v. Newman, 3 N.J. 503 (1950); that, so assessed, the refusal of a new trial here is unexceptionable; and that, at all events, the Appellate Division did not apply the principle of Rule 1:2-20(a), made applicable to the Appellate Division by Rule 4:2-6, providing, inter alia, that on a review of any cause involving issues of fact determined by the verdict of a jury, "the verdict, if contrary to the weight of the evidence, shall be set aside." After consideration of these issues, we directed argument of the question of the constitutional sufficiency of Rule 1:2-20(a), cited supra; and the cause came on for reargument in due course.

Plaintiff now contends that the particular provision of the rule would enlarge the jurisdiction granted to this court and the Appellate Division by the Constitution of 1947, and as well impair "the jurisdiction of trial courts by depriving the judgments of such inferior jurisdictions of the attribute of finality as to fact," and it therefore constitutes an excess of constitutional power. The cases of Central Railroad Co. v. Tunison, 55 N.J.L. 561 (E. & A. 1893), and Flanigan v. Guggenheim Smelting Co., 63 N.J.L. 647 (E. & A. 1899), are invoked; but there is no mention of State v. Knight, 96 N.J.L. 461 (E. & A. 1921).

Appellate review concerns the remedy. It is a remedial procedure secured against legislative interference by Article VI, Section II, paragraph 2, Section III, paragraph 3, Section

V, paragraphs 1, 2, and Article XI, Section IV, paragraph 3. It had the same security under Article VI, Section I, paragraph 1, and Section V, paragraph 3 of the Constitution of 1844.

The early cases in this State laid it down that the question of whether a new trial should be granted was "a subject addressing itself to the discretion of the court, and on that account the judicial action in that sphere has never been subjected to the least superintendency." Delaware, Lackawanna and Western Railroad Co. v. Nevelle, 51 N.J.L. 332 (E. & A. 1889). At common law, the action thus taken is not reviewable on strict error, for, as was pointed out by Mr. Justice Dixon in that case, "Neither the decision nor the state of the case on which it was rendered would form part of the record, and at common law the record only was reviewable on error," and therefore, "no matter whether questions of law were involved or not, the writ of error would bring up nothing by which the questions would be disclosed."

Appeals in equity and from the courts which derive their procedure from the civil law bring up the entire record of the proceedings for a reconsideration of the case both on the law and the facts. Sohland v. Baker, 15 Del. Chan. 431, 141 A. 277, 58 A.L.R. 693 (1927); Arnsperger v. Crawford, 101 Md. 247, 61 A. 413 (1905). The writ of error is not of statutory origin; it is an original writ at common law, grantable ex debito justitiae, to bring up final judgments of inferior tribunals clothed with judicial power, for review in matters of law alone apparent upon the record. Falkner v. Dorland, 54 N.J.L. 409 (Sup. Ct. 1892); Evans v. Gee, 14 Pet. 1, 10 L. Ed. 327 (1840). Appeals from judgments at law are unknown to the common law. The writ of error coram nobis or coram vobis at common law affords means for the correction of error of fact in the court in which the judgment was rendered. Sanders v. State, 85 Ind. 318 (1882); Keane v. State, 164 Md. 685 (1933). The judgment thereon is not reviewable at common law. Pickett's Heirs v. Legerwood, 7 Pet. 144, 8 L. Ed. 638 (1833). [7 NJ Page 207] In Central Railroad Co. v. Tunison, supra, a writ of error was sued out of the old Supreme Court to review the refusal of a new trial by the circuit court under c. 20 of the Session Laws of 1890 (Pamph. L., p. 33), which expressly granted the right of review before final judgment for error either of law or of fact; and the Court of Errors and Appeals ruled that the constitutional jurisdiction of the circuit courts included "the right to decide finally and without review whether a new trial shall be granted, and that right cannot be taken from them without substantially and materially impairing their powers," and so that statute was void. But in Kohl v. State, 59 N.J.L. 445 (E. & A. 1896), c. 163 of the Session Laws of 1894 (Pamph. L., p. 246; Gen. Stat. 1895, p. 1154), directing a new trial in a criminal case where the entire record of the proceedings had upon the trial, returned with the writ of error, revealed "manifest wrong or injury * * * upon the evidence adduced upon the trial," a judgment of conviction of murder of the first degree was reversed on the ground that the evidence was insufficient to "justify the verdict." In support of the statute, Mr. Justice Dixon declared: "To warrant a conviction of crime, the testimony should prove the guilt of the accused beyond a reasonable doubt. If it fails to do this, i.e., if it be of such a nature that, when fully and fairly considered, it will not satisfy any thoughtful mind, beyond reasonable doubt, of the guilt of the accused, then a conviction does manifest wrong, ...

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