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Cerf v. Smolderen

Decided: February 16, 1956.

ARTHUR E. CERF AND MARIETTA CERF, PLAINTIFFS,
v.
YVONNE SMOLDEREN AND GRENVILLE R. GIBB, JR., DEFENDANTS. YVONNE SMOLDEREN, PLAINTIFF, V. ARTHUR E. CERF, DEFENDANT



Foley, J.c.c. (temporarily assigned).

Foley

These actions, consolidated by order, arose from a three-car collision which occurred on the New Jersey Turnpike near mile post 82 in East Brunswick, New Jersey, on October 17, 1952. All vehicles were proceeding northerly on that highway. As they approached the scene of another accident the tractor-trailer, operated by Gibb, was slowed down and had either stopped or was about at a standstill when it was struck in the rear by the vehicle of Arthur Cerf. Simultaneously with this occurrence or immediately before or after the happening of it the Smolderen car was in collision with the Cerf car and then veered to its right, coming to a stop on a slope beyond the shoulder of the roadway. Marietta Cerf, wife of Arthur, was an invitee in the Cerf car. Mr. and Mrs. Cerf sustained severe injuries, as did Miss Smolderen, and both the Smolderen and Cerf vehicles were badly damaged.

As a result an action was instituted by Miss Smolderen against Arthur Cerf only, for property damage and personal injuries, to which the defendant filed a counterclaim for his property damage.

Thereafter both Cerfs instituted an action for personal injuries, joining Gibb and Smolderen, with a property damage count by Arthur against Gibb. Whereupon, Miss Smolderen cross-claimed against Gibb for personal injuries.

The several claims having been consolidated for trial, the cause proceeded by common consent as if Gibb and Arthur Cerf were jointly and severally charged with negligence by Miss Smolderen, and she and Gibb were similarly charged by the Cerfs.

The court charged the effect of negligence and contributory negligence of the respective drivers but the issue of Mrs. Cerf's contributory negligence was withdrawn and the jury instructed that proof of negligence on the part of Smolderen or Gibb, or both, would entitle her to a verdict.

On the Smolderen claim the jury found no cause of action, a poll establishing that verdict to have been arrived at by a 10 to 2 vote.

On the Arthur Cerf claim a unanimous finding of no cause of action was made.

On the Marietta Cerf claim the jury unanimously found no cause of action as to Gibb, and against Miss Smolderen in the amount of $1,350.

Mrs. Cerf now moves for a new trial as to damages only as against Miss Smolderen, upon the ground that the award in her behalf was inadequate. Upon the oral argument her attorney conceded that the verdict was so inadequate as to require a new trial, but asserted that for reasons urged in her own motion for new trial the retrial should be on all issues as to both defendants.

The Smolderen motion is posited on three propositions: first, that the poll of the jurors reveals an inconsistency in the verdicts against Smolderen on her own case and that returned against her in favor of Mrs. Cerf; second, that the verdicts against her are contrary to the weight of the evidence; and lastly, that the verdict in favor of Mrs. Cerf was a "quotient verdict," and, as such, tainted the jury's findings on all of the issues embraced by the consolidated cases.

In support of the first contention it is strenuously argued that the failure of two of the jurors to render patently consistent verdicts established a want of understanding on their part which amounted to misconduct. Reliance is placed on the holding in Panko v. Flintkote Co. , 7 N.J. 55 (1951), where reversal upon the ground of jury misconduct was predicated on a showing that one of the jurors had obtained information from an extraneous source, which was concerned with the insurance policy of the defendant. There, in defense of plaintiff's judgment it was argued that since a verdict may be reached by ten jurors the misconduct of one is inconsequential. Much is made of the reasoning of the Court in that case that a jury must act as a unit of 12 although the verdict of ten is permitted by N.J.S. 2 A:80-2. But plainly this language must be ...


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