On appeal from the Passaic County Court, Law Division.
For modification -- Justices Oliphant, Wachenfeld, Burling and Brennan. For reversal -- Chief Justice Vanderbilt, and Justices Heher and Jacobs. The opinion of the court was delivered by Wachenfeld, J.
Complaining of the trial court's action in resubmitting their case to the jury and in accepting the subsequent verdicts, which are said to be inconsistent, irreconcilable and, as to the plaintiff Gladys Watkins, inadequate, the plaintiffs bring this appeal, certified here on our own motion.
The suit was for personal injuries allegedly sustained by the plaintiffs Gladys Watkins and Beatrice Michie when they were struck while crossing the street by a vehicle owned and operated by the defendant. Frank Watkins brought an action per quod.
At the close of the case, the jury returned with their verdict in the following form:
"The jury finds by unanimous decision that defendant Edward Meyers to be guilty of negligence and makes an award to the plaintiff, Frank Watkins of $100, and no money awards to Gladys Watkins and Beatrice Michie."
Because of the obvious inconsistency with respect to the plaintiffs Watkins, the jury was sent back after instructions for further deliberation. One minute later they returned with this verdict:
"The foreman and the jury find a unanimous decision that the defendant Edward Meyers to be guilty of negligence and awards $100 to the plaintiff Gladys Watkins and no money awards to Beatrice Michie and Frank Watkins.
The Court: No cause of action as to the other two."
The plaintiffs' motion for a new trial was denied and there followed this appeal.
Seeking comfort in Elvin v. Public Service Coordinated Transport, 4 N.J. Super. 491 (App. Div. 1949), the plaintiffs contend the original verdict rendered was "clearly inconsistent," demonstrating the unfitness of the jury to continue to deliberate, but we think the controlling rule is enunciated in Salvato v. N.J. Asphalt & Paving Co., 135 N.J.L. 185 (E. & A. 1947); Money v. Etter, 8 N.J. Super. 371 (Law Div. 1950).
By reason of the plaintiffs' attorney's voluntary absence from the courtroom when the jury returned with the first verdict, no objection was made to the court's supplemental instruction, and consequently ...