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Turon v. J. & L. Construction Co.

Decided: January 28, 1952.

BELLA TURON, EXECUTRIX OF THE LAST WILL AND TESTAMENT OF HERMAN M. TURON, DECEASED, PLAINTIFF-APPELLANT,
v.
J. & L. CONSTRUCTION CO., A BODY CORPORATE, AND EDWIN SMITH, INC., LIKEWISE A BODY CORPORATE, DEFENDANTS, AND JAMES W. PETERSON, DEFENDANT-RESPONDENT



On appeal from the Atlantic County Court.

For amendment and 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.

Heher

Plaintiff's decedent died November 29, 1950, as the result of injuries sustained the prior August 29 through the wrongful acts of defendants, as is said; and the action was brought to recover the pecuniary loss suffered by his widow and next of kin in accordance with R.S. 2:47-1 et seq., as amended (the Death Act, so-called), and as well damages for the consequent pain and suffering endured by the decedent himself.

The fatal injury came from the fall of a portion of a temporary wooden fence surrounding a school construction project then in process at the northwest corner of Maryland and Pacific Avenues in Atlantic City, New Jersey, which had been removed and put to one side by the defendant Peterson's servants, at rest on the sidewalk against the adjoining fence, to afford access to the building site. The fence was erected by defendant J. & L. Construction Co., the general contractor. Peterson was a subcontractor for the brick work and masonry. At the time of the mishap, the defendant Edwin Smith, Inc., was engaged in delivering material by truck through the open gateway, which was approximately eight feet wide.

The gravamina of the complaint are the insecurity of the removed gate section of the fence, laid against both the general contractor and the subcontractor, and careless contact with the fence by Smith's truck as it moved through the passway, whereby the gate fell and struck decedent as he proceeded along the sidewalk. The general contractor and the subcontractor each paid $6,000 to plaintiff in exchange for a covenant not to sue; and the issue was then tried as to Peterson.

The jury were instructed that plaintiff was entitled "to only a single satisfaction" for the losses sustained, if occasioned by negligence, and in case the issue of liability be resolved in favor of plaintiff, the assessment of damages must take into account the payments made by Peterson's co-defendants and cover the difference only if the damages be found to exceed that sum, but if less than the sum so paid,

then there should be "a special verdict, stating that the plaintiff is entitled to recover but that she has received full satisfaction"; and if Peterson was not guilty of negligence, the verdict should be "no cause for action." The jury returned a verdict of "no cause for action." In the absence of the trial judge for the performance of judicial duties elsewhere, one of the county judges, by the former's designation with the consent of counsel, received the verdict of the jury. The judge inquired: "You do that, ladies and gentlemen of the jury, because you think the estate has received sufficient moneys by the settlement in the other cases?" The record shows that "The jury" answered: "We do"; and that upon a poll of the jury at the instance of plaintiff's attorney each juror answered that "his or her verdict is 'no cause for action.'"

A motion by the plaintiff for a new trial was denied. Her appeal to the Appellate Division of the Superior Court was certified here for decision on this court's own motion.

I.

The first insistence is that the verdict is "inconsistent" and "irreconcilable" and of doubtful meaning, and therefore inadequate to sustain the judgment. The reasoning, in a word, is that there was a "general verdict" in favor of defendant on the issue of liability, but that the jury's response to the inquiry of the judge who received the verdict constitutes a finding of liability which "had been adequately compensated." It is argued contra that the jury returned a general verdict in favor of the defendant Peterson as to liability, and that the answer to the inquiry of the judge who received the verdict suggests that the jury "improperly considered the plaintiff had already been sufficiently compensated by settlements with the other defendants in arriving at the verdict of 'no cause for action,'" and "merely reflects improper processes of reasoning or incorrect application of the legal principles stated in the charge of the Court," and

cannot be received to impeach what in form and substance and intent constitutes a general verdict. In disposing of the rule to show cause, the trial judge expressed the view that the "leading question" addressed to the jury by the judge who took the verdict was "out of time" and that, at all events, "the court does not analyze the processes by which jurors determine facts, except where it must necessarily conclude that the verdict was reached against the weight of the evidence or the result of mistake, bias and prejudice."

But it is obvious that the jury's response to the judge's interrogation as to the intent and significance of the deliverance cannot be ignored in determining the quality and content of the verdict. It is elementary that a verdict is to be read as a whole, in the light of the pleadings and the pertinent instructions of the judge, and given effect according to its plain intendment. The intent controls, if ascertainable from the jury's return. Malinauskas v. Public Service Interstate Transportation Co., 6 N.J. 269 (1951). And this without regard to whether the action was abortive or had the elements of a special verdict within the submission adequate to sustain a final judgment.

It is a rule of general acceptance that, barring a statute contra, a trial court may in its discretion inquire of a jury, upon the return of a verdict, as to the grounds or principle upon which the verdict is based, and that no exception lies to the exercise of such discretion. The inquiry is to determine the intention of the arbiters of the facts, in aid of a proper judgment. Pierce v. Woodward, 6 Pick. 206 (Sup. Jud. 1828); Dorr v. Fenno, 12 Pick. 520 (Sup. Jud. 1832); Smith v. Putney, 18 Me. 87 (Sup. Jud. 1841); Sporr v. Spooner, 12 Metc. 281 (Sup. Jud. 1847); Lawler v. Earle, 5 Allen 22 (Sup. Jud. 1862); Walker v. Bailey, 65 Me. 354 (Sup. Jud. 1876); Norris v. Haverhill, 65 N.H. 89, 18 A. 85 (Sup. 1889); Germond's Adm'r. v. Central ...


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