McGeehan, Jayne, and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
This action arose out of the occurrence of a mishap on Virginia Avenue, at Paterson, on the afternoon of August 23, 1948. The defendant was the owner and operator of a motor vehicle proceeding on the avenue in a westerly direction, and just beyond the intersection of the avenue and East 19th Street the vehicle and the infant plaintiff, Bruce Hellstern, then five years, three months and 15 days of age, came into collision. Compensatory damages were sought for the bodily injuries sustained by the infant. His father sued per quod.
A previous trial of the action resulted in a judgment of involuntary dismissal at the conclusion of the introduction of the evidence submitted on behalf of the plaintiffs. That judgment was reversed and a new trial was directed.
In the opinion filed by the appellate tribunal but not officially reported, the following conclusion, inter alia , was expressed: "In view of the age of the child, the only issue was the negligence of the defendant." The mandate issuing in pursuance of the opinion required "* * * that the record and proceedings be remitted to the said Superior Court (Law Division) to be there proceeded with in accordance
with the rules and practice relating to that court, consistent with the opinion of this Court." (Italics ours.)
The action was retried in the Law Division, submitted to the jury for determination, and a verdict of no cause of action in favor of the defendant and against both plaintiffs was rendered. The plaintiffs again appeal.
One of the grounds emphasized for the reversal of the present judgment is that the trial judge presiding at the second trial submitted to the jury for consideration the question relating to the contributory negligence of the infant plaintiff in disobedience of the mandate of the appellate tribunal.
In Jewett v. Dringer , 31 N.J. Eq. 586 (Ch. 1879), the vice-chancellor adverted to the contemplation that:
"Our government, for the proper administration and enforcement of the laws, has created several different tribunals, and assigned to each certain powers and duties. Some it has made superior to others, and to the superior it has given power to supervise the action of the others. Under such a system, unless each keeps strictly within its allotted sphere, and the subordinate yield obedience to the decrees of the superior, strife and disorder must necessarily ensue, and eventually the law will be overthrown and justice defeated."
Our former Court of Errors and Appeals in McGarry v. Central R.R. Co. of N.J. , 107 N.J.L. 382 (1931), expressed this comment:
"The mere statement of this proposition, as it seems to us, demonstrates its unsoundness. In essence, it is a declaration that, when a trial court disapproves of a legal principle laid down by a court of review as controlling in the determination of a case, it may disregard that principle, refuse to be bound by it, and decide the matter before it in direct violation of the controlling principle laid down by the appellate tribunal."
It is the well established, if not the universally accepted, rule that the trial court is under a peremptory duty to obey in the particular case the remittitur or mandate of the appellate court precisely as it is written, even though the remittitur or mandate is manifestly erroneous. Oswald v.
Seidler , 138 N.J. Eq. 440 (E. & A. 1946); Isserman v. Isserman , 2 N.J. 1 (1949); 3 Am. Jur. 730, § 1234, et seq. Relief from such a judicial obligation must be sought by an aggrieved party exclusively in the appellate tribunal. Wemple v. B.F. Goodrich Co. , 127 N.J. Eq. 333 (E. & A. 1940); Kurth v. Maier , 134 N.J. Eq. 511 (E. & A. 1944). Practicability and sound logic sustain the rule and its supporting precedents.
Cases may be envisioned in which the determinative factor of the decision of the appellate court was the state of the evidence in the first trial and the evidence introduced at the second trial is so materially divergent, or substantially dissimilar or significantly supplementary as to render inapplicable the conclusion expressed by the appellate court on the review of the former trial. The rule, however, to which we refer is certainly peremptory in its relation to what is spoken of as the law of the case, that is, to the principle of law which the appellate tribunal has expressly declared to be applicable to the particular cause of action.
The latter situation is presented to us by the present appeal. The declaration of the appellate tribunal was that " in view of the age of the child , the only issue was the negligence of the defendant." The contributory negligence of the infant plaintiff was expressly averred by the defendant in the second separate defense to the first count of the complaint. The only reasonable interpretation of the judicial pronouncement in the circumstances is that in view of the uncontroverted fact that the infant plaintiff was only five years, three months and 15 days of age at the time of the occurrence of the mishap, there is a conclusive presumption of law that he was incapable of contributory negligence. The trial judge nevertheless submitted the issue of the contributory negligence of the infant plaintiff to the jury for consideration at the second trial.
Another point accentuated by counsel for the appellant is critical of the following portion of the charge of the trial judge concerning proximate cause.
"The law requires that damages chargeable to a wrongdoer must be shown to be the natural and proximate effect or result of the delinquency. The term 'natural' means that they might reasonably have been foreseen; and the term 'proximate' means that there has been no other intervening cause. As I have said, the burden is upon the plaintiff to satisfy you by the preponderance of the evidence or the greater weight of the evidence of the negligence of the defendant, as I have defined negligence, and that that negligence was the proximate cause of the alleged injury."
At the conclusion of the court's charge to the jury and before the jury retired to consider the case, counsel for the plaintiffs ...