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Fisch v. Manger

Decided: April 1, 1957.


For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Weintraub. For affirmance -- None. The opinion of the court was delivered by Jacobs, J. Heher, J. (concurring in result). Mr. Justice Oliphant joins in this opinion. Heher and Oliphant, JJ., concurring in result.


The plaintiff suffered serious injuries in an automobile accident and, after trial, received a jury verdict in the sum of $3,000. He applied for a new trial because of the inadequacy of the verdict but his application was denied when the defendants consented that the damages awarded to the plaintiff be increased to the sum of $7,500. The plaintiff appealed and we thereafter certified on our own motion.

On September 17, 1953 motorcycle officer Petras was on traffic duty at the intersection of Bunn's Lane and Amboy

Avenue in the Township of Woodbridge. He halted north-and south-bound traffic along Amboy Avenue to enable the crossing of school children. The plaintiff's car was the third in line traveling south along Amboy Avenue and his car came to a full stop as did the two cars ahead of him. He was then struck in the rear by a truck owned by the partnership defendant and driven by the individual defendant. According to the testimony of both the plaintiff and the motorcycle officer the individual defendant explained at the scene of the accident that he thought his foot had "slipped off the brake." At the trial he denied having made such statement but did admit that he ran into the rear of the plaintiff's car and that the stoplights on the plaintiff's car were in proper working order. His story was that after the plaintiff's car had been brought to a standstill, it started moving again and was then brought to a very sudden stop after having traveled about 12 feet. When the jury returned its unanimous verdict its foreman stated that it had found "negligence on the part of the truck driver." During the application for new trial the lower court expressed the opinion that "liability was established beyond peradventure of a doubt," and we entertain the same view.

The plaintiff testified that when his car was struck he "was jerked back and forth" and received "a terriffic bang" on his head; his car went forward striking the car ahead which in turn struck the first car in line. Although he had received a severe impact he thought he would "be all right" and started to drive home. On the way he "began to get pains," stopped his car, and was ultimately driven home by a State Trooper. He called Dr. Copleman, who treated him during the next six weeks. Dr. Copleman testified that his examination showed that the plaintiff was suffering from injury to his neck and back which he diagnosed as "a whip lash injury, the head had been snapped back by an impact." He treated him originally with "sedatives and drugs for his pain * * * took x-rays of his neck and back, gave him diathermy treatments, and finally had to recommend that he wear a brace for his neck."

During this time the plaintiff, though he wore the recommended brace night and day, complained of much pain, and seeing little improvement Dr. Copleman recommended that the plaintiff consult Dr. Hoffman, an orthopedic physician of New Brunswick.

On the advice of Dr. Hoffman the plaintiff entered the Middlesex General Hospital on November 1, 1953 and remained there for two weeks. During that time he was placed in traction, which failed, however, to relieve his intense pain. Dr. Hoffman suspected that the plaintiff was suffering from a ruptured disc and he consulted Dr. Scheuerman, a neurological surgeon of Trenton. Dr. Scheuerman examined the plaintiff on November 17, 1953, made a diagnosis of probable ruptured disc, and recommended that he return to the hospital for further study. The plaintiff returned to the hospital on November 23, 1953 and a myelogram was performed; it confirmed that the plaintiff had a ruptured disc, and a hemilaminectomy was performed by Dr. Scheuerman with Dr. Hoffman assisting. The plaintiff was discharged from the hospital on December 10, 1953; he remained at home until February 15, 1954 and then returned to his employment, but only on a part-time basis. On July 20, 1954 he returned to the hospital where Dr. Scheuerman removed oil which had been inserted in the spinal canal during the myelogram. He did not resume full-time work until September 1954.

Dr. Scheuerman testified that he administered postoperative treatment to the plaintiff, who has continued to have some pain and is "not able to do all of the usual duties that he had previously." Dr. Hoffman testified that the operation on the plaintiff left a residual which he described as follows:

"Well, he has had a great deal of pain in the back. At one time he had a listing of the pelvis, in that the iliac crests were not level. And at that time he had a thickened sole prescribed and heel, to bring it up to normal. And he has no reflexes on the left side, no quadriceps extensor reflexes, or patellar reflexes; and he has atrophy of the calf muscles, compared with the opposite side, it is a little over a half an inch in circumference difference."

The plaintiff testified that he still is unable to perform his heavier duties and experiences back and leg pains for which he takes prescribed narcotics, is unable to sleep without sedation, and is unable to sit at one place for any substantial length of time. Both Dr. Scheuerman and Dr. Hoffman testified that there was a causal relation between the plaintiff's accident on September 17, 1953 and the hemilaminectomy which was performed thereafter. No medical testimony whatever to the contrary was introduced by the defendants, although they do urge that the plaintiff's injuries were attributable, at least in part, to an earlier accident which he suffered on February 3, 1950.

The 1950 accident resulted in a law action by the plaintiff which was later discontinued. In answers to interrogatories in that action the plaintiff stated that he was "partially prevented from attending his work between February 20th and February 27th, 1950"; that his injuries were "concussion; lumbo-sacral back sprain; vertigo; headaches; tinnitus or ringing of both ears and slight loss of hearing in both ears"; that he "will claim permanent injury to his back and loss of hearing and headaches"; and that his last medical treatments were in May and June 1950. However, the record indicates that the plaintiff actually suffered no really pertinent aftermaths of the 1950 accident. He testified (and there is nothing before us to suggest otherwise) that after February 27, 1950 and prior to his accident of September 17, 1953 he never lost a day's work "outside of having a cold or something like that," and that during that period his health was good and he engaged in sports and heavy work in normal fashion. The defendants suggest that prior to the 1953 accident the plaintiff had a "chronic back condition," which they relate to the later operation for a ruptured disc, and they refer specifically to a hospital record entry by Dr. Hoffman; but Dr. Hoffman made the entry on November 1, 1953 and explained that he was referring to the plaintiff's condition after the 1953 accident; in his own language: "I didn't say he had a chronic back prior to the accident. That was only after the accident."

The plaintiff's actual expenditures to doctors and nurses and for drugs and hospitalization exceeded $2,200. And although he received most of his normal earnings despite his temporary incapacity, there was a loss of wages approximating $620. While the jury's verdict of $3,000 just about took care of the plaintiff's actual monetary losses, it awarded substantially nothing for his suffering and permanent injuries. Its gross inadequacy was recognized by the trial judge who pointed out that "there was no dispute but that the plaintiff suffered excruciating pain, and was rendered totally helpless for a considerable period of time." On June 28, 1956 the trial judge wrote to the parties advising that unless the defendants filed a consent in writing that the verdict be increased from $3,000 to $7,500, "then the verdict heretofore rendered will be set aside and a new trial granted limited to damages only." The consent was filed by the defendants and on June 30, 1956 a formal order was entered dismissing the plaintiff's motion for a new trial. Though it was unnecessary, the plaintiff obtained leave to appeal from the Appellate Division. See R.R. 2:2-1; R.R. 4:61; cf. State v. Richter, 21 N.J. 421 (1956), certiorari denied 351 U.S. 975, 76 S. Ct. 1039, 100 L. Ed. 1492 (1956); State v. Haines, 20 N.J. 438 (1956); Palm Beach Mercantile Co. v. Ivers, 2 N.J. Super. 5 (App. Div. 1949); 6 Moore's Federal Practice 3891 (2 d ed. 1953).

The first point which he urges in support of his appeal is that once the trial court had concluded that the damages awarded by the verdict were inadequate it had no legal power whatever to condition the grant of a new trial upon the defendants' failure to consent to a prescribed increase in the verdict. But see Gaffney v. Illingsworth, 90 N.J.L. 490, 492 (E. & A. 1917); Esposito v. Lazar, 2 N.J. 257, 259 (1949); Elvin v. Public Service Coordinated Transport, 4 N.J. Super. 491, 494 (App. Div. 1949); 1 Bradner, New Jersey Law Practice § 389 (McC. Marsh 1940); Harris, Pleading and Practice in New Jersey § 664 (rev. ed. 1939); Sheen, New Jersey Law Practice 458 (2 d ed. 1931). Much has appeared in the law reviews in support of the practices

of remittitur and additur as enlightened aids in securing substantial justice between the parties without the burdensome costs, delays and harassments of new trials. See Carlin, "Remittiturs and Additurs," 49 W. Va. L.Q. 1 (1942); Note, "Correction of Damage Verdicts by Remittitur and Additur," 44 Yale L.J. 318 (1934); Note, "Additur in California," 40 Cal. L. Rev. 276 (1952); Note, "Additur and Remittitur," 26 Va. L. Rev. 836 (1940). Cf. Millar, "Notabilia of American Civil Procedure," 50 Harv. L. Rev. 1017, 1052 (1937); Scott, Fundamentals of Procedure in Actions at Law 119-131 (1922). The term remittitur is used to describe an order denying the defendant's application for new trial on condition that the plaintiff consent to a specified reduction in the jury's award, whereas the term additur is used to describe an order denying the plaintiff's application for a new trial on condition that the defendant consent to a specified increase in the jury's award. While it is now recognized that the two practices are logically and realistically indistinguishable, remittiturs have been recognized almost everywhere, whereas additurs are still outlawed in some, though by no means all, of the states. Compare O'Connor v. Papertsian, 309 N.Y. 465, 131 N.E. 2 d 883 (1956), where the New York Court of Appeals unanimously sustained an Appellate Division order which denied a new trial upon the defendant's consent to increase the $1,000 awarded by the jury to the sum of $2,500, with Dorsey v. Barba, 38 Cal. 2 d 350, 240 P. 2 d 604 (1952), where the Supreme Court of California (with Justice Traynor dissenting) held that although its courts could properly deny new trials upon consents by plaintiffs to reductions, they could not properly do so upon consents by defendants to increases. See 25 Fordham L. Rev. 150 (1956); 31 N.Y.U.L.Q. 1537 (1956); 40 Cal. L. Rev., supra; 10 Wash. & Lee L. Rev. 46 (1953).

The English precedents prior to the American Revolution are somewhat obscure and they are discussed in the majority and minority opinions in Dimick v. Schiedt, 293 U.S. 474, 55 S. Ct. 296, 302, 79 L. Ed. 603 (1935). There Justice

Sutherland, speaking for a majority of five (with Justice Stone, joined by Chief Justice Hughes and Justices Brandeis and Cardozo, dissenting) held that although remittitur is permissible in the federal courts, additur is prohibited by the force of the provision in the Seventh Amendment that "the right to trial by jury shall be preserved, and that 'no fact tried by a jury shall be otherwise re-examined by any court of the United States, than according to the rules of the common law.'" In Belt v. Lawes (1884), 12 Q.B. 356, the court sustained the denial of a new trial upon the plaintiff's consent to accept a lesser amount than that awarded by the jury; on appeal, Brett, M.R. not only approved the practice followed below but suggested that the court would also have power "to say that the damages given are too small, but that if the defendant will agree to their being increased to such a sum as may be stated, a new trial shall be refused." Cf. Armytage v. Haley (1843), 4 Q.B. 917, 114 Eng. Rep. 1143. In the later case of Watt v. Watt (1905), A.C. 115 the court took an opposite position and rejected the view that a court could condition a denial of a new trial on the plaintiff's acceptance of a reduced verdict. Lord Davey acknowledged that a contrary practice had grown up and that it generally served substantial justice; but he considered that there was a lack of common law power and referred to various judicial dicta to the effect that a jury's award of damages could not be reduced "without the consent of both parties." However, Justice Sutherland in the Dimick case did not follow the result in the Watt case and declined to upset the remittitur practice, first approved by Justice Story in Blunt v. Little, 3 Fed. Cas. No. 1,578 (C.C. Mass. 1822), and since reaffirmed in many federal decisions. See Arkansas Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 9 S. Ct. 458, 32 L. Ed. 854 (1889), and the other cases cited in Moore, supra 3739.

In his dissenting opinion in the Dimick case, Justice Stone pointed out that the Seventh Amendment was concerned with substance ...

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