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Randazzo v. Bacque

Decided: October 21, 1955.


Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.


[37 NJSuper Page 549] Automobiles driven by the defendants Ines L. Bacque and Ruth Sinclair collided at a street intersection in Vineland, New Jersey. The infant plaintiff Joyce Randazzo, a passenger in the car of Mrs. Bacque, received injuries which resulted in this action. Her father Thomas

Randazzo sought recovery also for his consequential losses. The jury found both drivers guilty of negligence and awarded the infant $22,000 (this being $2,000 in excess of the demand in the ad damnum clause of the complaint), and the father $2,682.

Both defendants sought a new trial on the ground that the verdicts were excessive. The medical and hospital expenses totaled $682.95. The trial court reduced the father's award to $680, which modification was accepted in lieu of a new trial on all issues. However, the attack on the infant's recovery was dismissed and the court on his own motion amended the ad damnum clause to make it conform with the verdict.

On this appeal, both defendants charge as error the failure to vacate the $22,000 verdict and to order a new trial as to damages only. In addition the defendant Bacque assails as illegal the amendment of the ad damnum clause.

The area in which this Division can exercise its appellate power is sharply circumscribed on such a review. We cannot interfere with the order of the trial court "unless it clearly and unequivocally appears there was a manifest denial of justice under the law." Hartpence v. Grouleff , 15 N.J. 545, 549 (1954).

The application of such a test makes necessary a study of the evidence adduced before the jury. It requires also an appraisal of any alleged improper incidents at the trial; and if the charge of impropriety is sustained, an evaluation of their reasonably probable influence on the deliberations of the jury. These measures are not engaged in for the purpose of substituting our judgment for that of the jury or of the trial court as to the quantum of reasonable compensation. Our object is to determine, after giving due regard for the opportunity of the trial court and the jury to pass upon the issues and evidence involved and the credibility of the witnesses (R.R. 1:5-3(a)), whether allowing the verdict to stand would give judicial sanction to a result which clearly and unequivocally manifests mistake, passion or prejudice on the part of the jury.

Joyce Randazzo was 15 years of age at the time of the trial. The accident which produced her injuries took place on March 7, 1954, about 10 1/2 months earlier.

In the collision she sustained a blow on the head; whether she came into contact with the person of a younger girl who was sitting on her lap or with some part of the car in which she was riding, does not appear. She was dazed but alighted from the car unaided when the door was opened by the driver. There is some testimony that she fell after doing so; but she walked to a nearby house, arranged for an ambulance to be called, she talked on the telephone with the husband of Mrs. Bacque and advised him of the accident although she felt dizzy and did not look up the number herself. She returned to the scene, and remained there while the ambulance removed another injured passenger. Then she went to the hospital in the car of Mr. Bacque who appeared in response to the telephone call.

At the hospital the Randazzo family physician was telephoned and on arrival he examined Joyce. She was complaining principally of severe headache and dizziness. A diagnosis of cerebral concussion was made and she was put to bed.

The hospitalization lasted for almost a month. During this period she suffered from dizziness and headaches and the doctor conceded that the nurses notes showed a gradual diminution of such complaints from March 11 to the date of discharge. And he said, "from the first day there was quite an improvement." On the basis of two sets of X-rays taken on different days, it was strongly suspected that she had a one-inch linear fissure fracture of the skull and she was treated as a fracture case.

While in the hospital all of the medical tests designed to search out brain damage resulting from the concussion were negative. At no time throughout the history of the case down to the last examination before trial had such tests revealed to the treating physician or to the neuro-psychiatrist, who was called in to examine on two occasions, any objective signs of brain damage.

The treating physician made two home visits to Joyce in the two additional weeks she remained in bed after being discharged from the hospital. Thereafter, once a month she came to his office for observation. On these occasions, he continued to make the usual tests for objective indications of brain injury and they were always negative.

However, the complaints of headaches continued. The young lady asserted they had not diminished in extent since she returned to school in September 1954, and that she still gets dizzy when they are severe. In describing the headaches, she said they came "nearly every day" and "they may have lasted for hours, maybe less."

The treating physician testified that the sole symptom now present is the complaint of headaches with no objective findings of brain damage. He accepted the subjective complaint as true and "believed" that the condition is permanent; he did not think in her case "it will clear up too soon"; "the headaches in her case, I think will last, if anything for a long time." This doctor is a general practitioner. Such a practitioner's opinion, he volunteered, would not be "as good" in this type case as that of the neuro-psychiatrist he called in. And he conceded that the specialist had reported to him that Joyce should gradually recover.

We have not attempted to specify all of the details of the subjective complaints as testified to by Joyce and her mother. The outline is primarily a prelude to statement of the circumstances which impel us to the conclusion that the trial court erred.

In his opening, counsel for the plaintiffs told the jury to observe Joyce carefully while she testified and they would notice that

"the left eye and the left corner of the mouth will twitch, like this, just a little, the least little bit. She doesn't know she is doing that. That is an indication that there has been an injury to one of the branches of one of the cranial nerves. The doctor will explain all of that to you. I probably may not even allude to it when she is on the stand, but you please watch for it. Ever so little, but you will see it. That is not from an injury to the

brain. That is from a local injury to the nerves that control that part ...

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