Conford, Freund and Haneman. Conford, J.d.a. Haneman, J.A.D. (dissenting).
[52 NJSuper Page 462] These were cross-actions for damages arising out of an automobile accident, consolidated for trial.
Lorraine Johnson and Dickie Harris were passengers in an automobile being driven by Miles. Wisniewski was a passenger in a car being operated by Stoveken in the opposite direction on Route 206 between Princeton and Somerville. The cars collided at 1:45 A.M. on September 23, 1956. Johnson, Harris and Miles sued Stoveken, while Stoveken and Wisniewski sued Miles.
The jury returned verdicts in favor of Miss Johnson for $35,000, for Harris of $40,000, and for Miles of $300. No cause of action was found in the action of Stoveken and Wisniewski against Miles. A motion for new trial by Stoveken and Wisniewski, assigning as grounds that the verdict was against the weight of the evidence, and the result of partiality, prejudice or passion, and that the verdicts in favor of Harris and Johnson were excessive and contrary to the weight of the evidence, was denied. On this appeal, in addition to those grounds, there are also raised as points of appeal the references by trial counsel and court to the ad damnum clause in the complaints and alleged errors in rulings on evidence.
Concerning the weight of the evidence on the matter of fault, or liability for negligence, and the related question of freedom from contributory negligence of the respective drivers, we deem it unnecessary to detail the sharply conflicting proofs. While the jury might well have laid negligence at the doorstep of Miles, as either partially or solely contributive to the accident, rather than exclusively to Stoveken (as it is evident it did by the verdict for Miles against Stoveken), we cannot say that its right to determine the credibility and preponderance of the proofs could not rationally have led it to the assessments of negligence and innocence thereof which the verdicts reflect. The refusal of the trial judge to interfere with the verdict further conduces to our conclusion, Hartpence v. Grouleff , 15 N.J. 545 (1954), as we cannot find a "manifest denial of justice."
In relation to the matter of evidence concerning liability, defendant complains of the refusal of the trial court to allow him to ask, on cross-examination, for plaintiff
Johnson's explanation of a discrepancy between her testimony at a prior hearing and that given at the trial. It is not altogether clear that there actually was a discrepancy. In any case, however, the right to explain is that of the witness sought to be impeached. The cross-examiner's rights are fully served by showing the contradiction in the testimony and asking the witness concerning the truth of one or the other version. Defendant was not impeded in any such effort. In any event, there was no prejudice material to the outcome in the trial ruling.
Concerning the amount of the verdicts for Harris and Johnson, we do not deem them excessive, certainly not in the sense of requiring a conclusion of mistake, passion, prejudice or partiality. Miss Johnson, a young woman of 21, sustained almost a complete amputation of her nose. She had extensive surgery and will require considerably more. She will never be restored to any approximation of her former normal appearance. Her other painful and extensive lacerations and injuries and the treatment had therefor are accurately detailed in the trial judge's opinion denying a new trial.
Harris, who was 29, suffered a dislocation of the sixth cervical vertebra on the seventh cervical vertebra and probably an associated fracture. He was in the hospital a total of nine weeks on two occasions. He was first treated by traction and plaster cast. After removal of the cast it was found that the dislocation had recurred. Further traction was not helpful. Consequently, to avoid the great hazard, in the patient's then condition, of further dislocation which might impinge on the spinal cord and produce paralysis, an operation was performed consisting of a fusion of four vertebrae, including the two directly involved in the dislocation, using two pieces of bone from one of the legs, reinforced by wire. The effect was to rigidify the neck and minimize the possibility of further dislocation. However, the patient's neck motion was substantially reduced. The necessary effect, moreover, was to eliminate function in one-third of the vertebral joints in the cervical spine, so
that the other joints and vertebrae must bear more stress and strain than normal. The probabilities, therefore, are for earlier degenerative arthritis than generally occurs in the neck and spine. His ability to obtain gainful employment in his occupation as a laborer has been considerably impaired, because he tires rapidly. There continues to be considerable pain and discomfort when sitting, standing or lying down. The uncontradicted expert testimony was that plaintiff's physical changes due to the accident and operation are permanent.
Defendant finally urges reversal on the basis of the reference by trial counsel to the amounts of $100,000 requested in the ad damnum clauses of the complaint. There was no objection to the reference at the trial. In charging the jury the trial judge adverted to the reference, informed it of the nature of the complaint and of the ad damnum clause, and said, without any objection by any party:
"Now, the measure of a person's recovery in an action of this sort is not what the plaintiff's attorney has seen fit to demand in his complaint, but rather his measure of recovery is predicated on certain rules of law that are well established and these rules guide the Jury in their determination of the amount of the verdict. Not what the attorney for the respective plaintiffs demand. I shall give you those rules in the course of my charge. They are the facts that are to be used by you when you reach the element of damages and your determination, of course, is to be made entirely upon the application of those rules."
In Botta v. Brunner , 26 N.J. 82 (1958), decided after the trial of the instant case, the Supreme Court by dictum overruled a settled line of authority permitting reference by counsel to the amount sought in the complaint. The court determined that this practice should be prohibited because the figure mentioned might operate "as a conscious or unconscious factor" in the verdict reached by the jury, contrary to the rule that the determination from the evidence of the money equivalent of the pain, suffering and permanence of personal injuries was the exclusive domain of the jury (26 N.J. at pages 104, 105).
Defendant argues that the Botta ruling must be given retrospective effect. He conceded at the argument, however, that the error is not an automatic basis for reversal, but, as in cases of trial error generally, will justify reversal only if found materially prejudicial in the particular case. He contends prejudice is shown here, reflected by the jury's assessment of liability against the weight of the evidence and of damages in excessive amounts. We have, however, indicated our disagreement with the contentions that the verdicts indicate passion, prejudice, partiality or mistake in either of the respects mentioned. Indeed, we do not regard them as excessive at all. Further, mention of the amount sued for would have little, if any, relevancy to the verdict as to liability. Thus, even if the Botta rule were applied here, we would not be led to the conclusion that counsel's mention of the amount of the recovery or the court's charge concerning the matter operated prejudicially in the particular circumstances reflected by the entire record. A fortiori we would not deem these occurrences plain error, warranting reversal in spite of the fact that no objection was taken to them at the trial.
In any event, however, considerations of basic fairness and justice (see Arrow Builders Supply Corp. v. Hudson Terrace Apts. , 16 N.J. 47, 49, 50 (1954)) seem to us to weigh against the application of the Botta rule to nullify a trial conducted in accord with the practice then and long previously enjoying express judicial sanction. See also Carlucci v. Stichman , 50 N.J. Super. 96 (App. Div. 1958). It will be noted that in expressly overruling prior decisions approving mention of amounts sought to be recovered Mr. Justice Francis states, in Botta , that the court is doing so "In order that the rule announced in the present case may be invested with its full and intended scope * * *" (emphasis supplied) (26 N.J. at page 104). This language strongly implies that the court is announcing a rule to control cases tried after the decision, not one intended to be retrospective in effect.
HANEMAN, J.A.D. (dissenting).
I concur with my colleagues in their conclusions except insofar as they concern the reference by plaintiffs' counsel to the ad damnum clause. My dissent is as to their conclusion that ...