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Cerf v. Smolderen

Decided: December 13, 1957.

ARTHUR E. CERF, PLAINTIFF, AND MARIETTA CERF, PLAINTIFF-RESPONDENT,
v.
YVONNE SMOLDEREN, DEFENDANT-APPELLANT, AND GRANVILLE R. GIBB, JR., DEFENDANT. [SUPERIOR COURT DOCKET NO. L-1238-54]; YVONNE SMOLDEREN, PLAINTIFF, V. ARTHUR E. CERF, DEFENDANT. [ESSEX COUNTY COURT DOCKET NO. 98017]



Clapp, Jayne and Schettino.

Per Curiam

This is a consolidated action arising out of an accident involving three vehicles which were proceeding northward on the New Jersey Turnpike one evening. Granville R. Gibb, Jr., driving a tractor-trailer, in the right or slow lane, was forced to come to a stop because of traffic in both lanes which was backed up for nearly a mile ahead as a result of another accident. Arthur E. Cerf, driving a Cadillac in the left or fast lane, swerved to his right into the rear of Gibb's trailer, apparently in order to avoid hitting other cars ahead of him. In Cerf's car was his wife, Marietta Cerf, who, so the court instructed the jury, could not be charged with contributory negligence. Finally, there was Miss Yvonne Smolderen, driving a Packard, who rammed her car into the rear of the Cadillac and then went over an embankment to the right.

There were two trials. In the first trial, conducted before Judge Foley, three claims were submitted to the jury: Mrs. Cerf's claim against Miss Smolderen and Gibb; Mr. Cerf's claim against the same persons; and Miss Smolderen's claim against Cerf and Gibb. Initially, the jury returned a verdict of no cause for action with respect to each of these claims. Judge Foley, however, refused to accept the verdicts, holding

them to be irreconcilable, and sending the jury back for further deliberation. Later the jury returned to the court room, seeking additional instructions, as indicated by Judge Foley as follows:

"Ladies and gentlemen, I have the following message from you: 'Your Honor:

We understand from your charge that if we found Mr. Cerf guilty as to the cause of the accident, Mrs. Cerf is not entitled to damages.

We have found Mr. Cerf's negligence was the cause of the accident. Therefore, we believe that Mrs. Cerf is not entitled to damages.

We have also found negligence on the part of Miss Smolderen as to her own safety only. Is she entitled to damages from Mr. Cerf?'

With respect to these questions I charge you as follows:

If you find that Mr. Cerf's negligence was the sole proximate cause of the accident, then Mrs. Cerf would not be entitled to a recovery. But in that event Miss Smolderen would be entitled to a recovery against Mr. Cerf. However, if you find that Miss Smolderen, by her own negligence, proximately contributed to the happening of the accident in any degree whatsoever, she is debarred from a recovery. Because as I indicated to you in my main charge, we don't measure degrees of negligence.

If, however, you should find that Mr. Cerf, by his negligence, and Miss Smolderen, by her negligence, caused the accident -- even though their negligence may have been in unequal degrees -- then Mrs. Cerf is entitled to a recovery against Miss Smolderen."

The jury again retired and thereafter came in with a verdict of $1,350 in favor of Mrs. Cerf. That proved to be a quotient verdict and was set aside; and pursuant to a motion made by Mrs. Cerf, a new trial was ordered on her claim against Miss Smolderen, limited, however, to damages only. Cerf v. Smolderen , 39 N.J. Super. 222 (Law Div. 1956). A substitution of attorneys was then filed, so as to enable her present attorneys to appear for her as defendant only (and their representation is still so confined; no one appears for her, as plaintiff). They then moved for a rehearing of the motion for a new trial. After full argument, the rehearing was ...


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