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Scott v. Bodnar

Decided: November 12, 1958.

LENA SCOTT, PLAINTIFF-APPELLANT,
v.
EUGENE BODNAR T/A BODNAR'S LIQUOR STORE AND GEORGE KUCHARCZYK, DEFENDANTS-RESPONDENTS



Price, Schettino and Hall. The opinion of the court was delivered by Price, S.j.a.d.

Price

[52 NJSuper Page 440] Plaintiff appeals from a judgment in favor of defendants entered on the latter's motion in the district court at the conclusion of the entire case. Plaintiff's

action was based on negligence arising out of an automobile accident in which she was injured. The case was tried before a judge and jury in the district court on transfer from the County Court, in which latter court it had been instituted. A County Court judge presided at the district court trial. The primary question involved in the litigation was whether a general release to which plaintiff had affixed her mark barred her action. The trial court held it did.

For present purposes we may assume that plaintiff was injured on October 14, 1955 when struck by a truck of defendant Bodnar operated by defendant Kucharczyk, that she was struck as she was walking on the sidewalk in Talmadge Street, New Brunswick, and that the accident occurred in an area where an entrance driveway from the street crossed the sidewalk. Plaintiff allegedly suffered severe bruises and sprains as a result of the accident. Her injuries were such as to require her confinement in a hospital for four days and necessitated subsequent treatment at a hospital clinic.

The case is complicated by certain problems of procedure, the most important of which arises by virtue of the fact that the trial court considered and disposed of plaintiff's defense to the release on equitable grounds despite the fact that the case was being tried in the district court. Reference to the pleadings and to the subsequent action by the court discloses the procedural problems presented by the appeal.

Plaintiff's complaint sought the recovery of damages for her injuries and reimbursement for consequential expenses and for wages allegedly lost as a result of the accident aforesaid. The answer challenged the allegation of negligence and asserted plaintiff's contributory negligence. In a second separate defense it was asserted that an insurance carrier on behalf of defendants settled plaintiff's claim and that plaintiff executed a written release dated November 15, 1955 discharging defendants from all liability. A copy of the release was appended to the answer. Plaintiff filed a reply alleging that she was illiterate, that the release was

not executed by her and that her alleged mark upon the paper purporting to be a release was induced by fraud and misrepresentation. Although inartistically worded, the reply warrants the conclusion that plaintiff's attempted avoidance of the release included equitable defenses upon which she primarily relied at trial.

At the trial plaintiff contended that she had affixed her mark to the document in question without knowing its significance and that the representative of the insurance carrier of the defendant owner had failed to reveal its true nature to her. Examination of the testimony leaves no doubt that the basis of plaintiff's defense to the release rested in the equitable field. Much of the evidence presented would have been inadmissible if legal issues only were involved. In view of plaintiff's claim that equitable fraud was present the case should not have been transferred to the district court as that court had no jurisdiction to determine equitable issues. N.J.S. 2 A:6-34(a); Josefowicz v. Porter , 32 N.J. Super. 585, 589 (App. Div. 1954).

The record on appeal does not contain a transcript of the argument made by defendants' counsel before the trial court in support of his motion for dismissal, but does contain a transcript of his introductory remarks as follows:

"If it please your Honor, on behalf of the defendants I respectfully move for a judgment of dismissal on the ground that the release offered in evidence as D-1 on behalf of the defendants is a bar in this suit to the claims of the plaintiff for injuries and damages as a result of the accident on October 14, 1955."

Examination of the record shows that the trial judge, in granting defendants' motion for a judgment in their favor, disposed of the case as if he were sitting as an equity judge. He weighed the testimony offered by the respective litigants. His determination was couched in language which demonstrates conclusively that he made findings of fact and drew conclusions of law as if he were sitting without a jury in an equity case. Consequently we review it on that basis.

The proofs showed that plaintiff, 43 years of age, was illiterate. She had only one year of school instruction during her entire life and none since she was six or seven years of age. Although there was no expert evidence as to the measure or grade of her mentality, her testimony at the trial furnishes ample proof that she was so lacking in intelligence as to render her incapable of answering responsively numerous simple questions propounded to her. Her failure to comprehend many of the questions presented, including those propounded by her lawyer as well as those addressed to her in cross-examination, demonstrates her low mental state.

The aforesaid release consisted of a printed form with longhand insertions by the investigator describing the site and date of the accident and other incidental details. It embodied an expressed consideration of $163 of which sum admittedly $63 related to a hospital bill incurred by plaintiff as a result of the accident. Plaintiff's mark was ...


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