Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiffs appeal from an order denying their application for a jury trial on the retrial of their property damage action. The basis of the denial was a stipulation contained in the original pretrial order whereby all parties consented that the matters be tried before the court sitting without a jury.
Plaintiffs instituted their action on May 28, 1955. The pretrial conference on March 21, 1956 resulted in an order reciting that "All parties have consented that this matter be tried before the court alone, and without a jury." At the subsequent trial the judge granted defendants' motion for involuntary dismissal at the close of plaintiffs' case. On appeal this court reversed and ordered a new trial. The Supreme Court denied certification.
There was a new pretrial conference on April 7, 1958, defendants appearing through new counsel. Pursuant to leave granted by the pretrial order, plaintiffs made formal application for a retrial by jury. The Law Division judge denied the application "by reason of the stipulation waiving trial by jury for the first trial." We granted leave to appeal.
At the time this action was instituted on May 28, 1955 plaintiffs were entitled to a jury trial as of right. N.J. Const. of 1947, Art. I, par. 9. Under our original rules of court, they could waive that right either by written stipulation filed with the court or by oral stipulation made in open court and entered in the record. Rule 3:38-1, which became R.R. 4:39-1 when the rules were revised on September 9, 1953.
On June 27, 1955 the Supreme Court amended R.R. 4:39 relating to jury trials by providing that any party can demand a trial by jury of any issue triable as of right by a jury, by serving written demand upon the other parties at any time after the commencement of the action and not later than ten days after service of the last pleading directed to such an issue. R.R. 4:39-1, as amended. Failure to serve such a demand constitutes a waiver of trial by jury. R.R. 4:39-3. By special order of July 18, 1955, the Supreme Court provided that R.R. 4:39, as amended with respect to demand for a jury trial, not be effective in cases where the complaint was filed prior to September 7, 1955. Accordingly, the rule provisions relating to jury demand and waiver do not apply to the instant action. We must therefore resolve the issue raised on this appeal in the light of the preexisting rule and policy relating to plaintiffs' right to a jury trial unless expressly waived.
The issue here, succinctly stated, is whether a consent to a trial without jury in an action instituted in May 1955 continues to bind plaintiffs upon a retrial of their action after the judgment on the first trial has been reversed on appeal. Defendants insist that it does, claiming that trial by jury herein was waived not merely for the first trial, but for all steps taken in the litigation up to final judgment,
including subsequent trials. They cite Kearns v. Simpson , 83 N.J.L. 221 (Sup. Ct. 1912), affirmed 84 N.J.L. 415 (E. & A. 1913); Lerner v. McDermott , 11 N.J. Misc. 99 (Sup. Ct. 1933); and Friedman v. Steinhauser , 13 N.J. Misc. 601 (Sup. Ct. 1935), in support. Each of these cases arose in the district court under an act relating to that court and requiring that a jury be demanded at least one day before the return day of the summons -- later changed to provide that demand be made two days before the time fixed for trial. It was held that failure to make timely demand for a jury before the first trial amounted to waiver of trial by jury not merely for that trial, but for all steps taken in the litigation up to final judgment, including subsequent trials, if any. The court in Lerner observed that to hold otherwise "would give a party a chance to speculate, first with the judge, and having lost there and obtained a new trial for legal error * * * then to have a chance to get a different result from a jury on the factual phase of the case." We do not agree with that rationale; one may not fairly characterize a party's waiver of a jury at the first trial as a speculation. Ordinarily, a party does not contemplate there will be a reversal of judgment on appeal, followed by a second trial. There would appear to have been nothing contrary to the public policy implicit in the former rule in permitting one who initially waived a jury trial to be guided by his judgment as to what happened at the first trial in deciding whether or not to exercise his right to a jury at the retrial.
The Kearns, Lerner and Friedman cases, moreover, having been decided under a statutory provision akin to our present rule, obviously have no application to a situation controlled by the predecessor rule.
Absent a statute or rule like our present R.R. 4:39, the weight of authority is clearly against defendants' contention. The general rule is that waiver of a jury at the first trial does not affect the right of either of the parties to demand a jury on the second trial. 31 Am. ...