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Gindin v. Baron

October 17, 1951

HAROLD GINDIN, PLAINTIFF-RESPONDENT,
v.
HERMAN BARON, T/A B & B PROVISION COMPANY, DEFENDANT-APPELLANT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.

Brennan

Plaintiff sued for damages for injuries suffered from a willful assault upon him by defendant, Stein, an employee of defendant Baron. Liability of Baron was alleged under the doctrine of respondeat superior.

Upon the first trial plaintiff recovered a judgment against Stein but his case as to Baron was dismissed by the court. We reversed the judgment of dismissal and returned the case to the Law Division, Union County, for a trial de novo as to Baron. (Gindin v. Baron , 11 N.J. Super. 215 (App. Div. 1951)).

The second trial resulted in the entry of the judgment on appeal. It is a judgment against Baron in the sum of $2,500 entered upon a jury verdict of $1,500 compensatory and $1,000 punitive damages. Thereafter the trial judge denied Baron's motion for a new trial sought upon the ground that the verdict was against the weight of the evidence and excessive.

The alleged excessiveness of the verdict is not pressed in this court, but it is again urged that as to liability it was contrary to the weight of the evidence. We do not abrogate a judgment on that ground unless, having given due regard to the action of the trial court and its opportunity and that of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that the underlying verdict was the result of mistake, partiality, prejudice or bias. Rule 1:2-20, as amended; Hodes v. Dunsky , 15 N.J. Super. 27 (App. Div. 1951); Gelsmine v. Vignale , 11 N.J. Super. 481 (App. Div. 1951); (see Hager v. Weber , 7 N.J. 201 (1951)).

Tested by that standard, we perceive no basis upon which the judgment should be nullified.

The evidence against Baron did not materially differ at the two trials. It is substantially summarized in our previous opinion, 11 N.J. Super., pp. 218-219. Whether the elements were proved establishing liability depends entirely upon whether the jury could reasonably find that certain statements testified to by plaintiff as having been made by Baron were made by him. Plaintiff testified that at the scene after the attack Baron said to Stein, as Baron, Stein, the plaintiff and a police officer were entering an automobile to go to the police station, "It's a good thing that you gave him a good beating. Now he won't bother our customers any more"; and that Baron at the police station but out of the presence of any officer said to plaintiff, "Now you will stay away from our customers, now that you got a good beating."

Plaintiff also testified that a few weeks prior to the assault. Stein and he had met on two occasions while driving their respective employers' trucks on the highway and that Stein had threatened to injure plaintiff if he did not stay away from Baron's customers. Stein admitted one such meeting, but denied that he had threatened plaintiff; he said plaintiff had cut him off when passing him and that this had occasioned the exchange of words between them.

Plaintiff said that on the day of the assault he had parked his truck in front of the Fishman store and was waiting in the store for delivery of goods he had purchased when Stein entered and, addressing plaintiff with an epithet, immediately perpetrated the assault as plaintiff sat at a table.

The defense was that Stein's admitted assault was occasioned solely by personal animosity of Stein toward plaintiff. Baron testified that he never had heard of plaintiff before the attack, did not know he was employed by Baron's competitor, Hebrew Kosher Provision Company, and was completely unaware of plaintiff's presence in the Fishman store when Baron, Stein and another employee of Baron drove to the store and Stein entered, leaving the other employee and

Baron in the car. Baron said that Stein was not a route salesman but a handyman, and that on that day he and Stein had previously met at a neighboring auto repair shop where Baron had left a truck for repair, and while driving back to Baron's place of business had stopped at the Fishman store to pick up some goods Baron had ordered. Witnesses from the auto repair shop and Fishman's testified from records to substantiate Baron's explanation of his presence at the scene. Stein denied that plaintiff's truck was parked in front of the store or that he saw it before he entered. He admitted, however, that he was familiar with ...


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