Schettino, Hall and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.
Plaintiff sued in the Superior Court, Passaic County, for damages for personal injuries which he sustained when the automobile driven by him collided with defendant's vehicle at an intersection. Defendant counterclaimed. The case was transferred to the Passaic County District Court for trial. There the jury brought in a verdict of $2,632.50 in favor of plaintiff upon his claim, and a verdict of no cause for action on defendant's counterclaim.
Defendant moved for a new trial. The notice of motion is not printed, but defendant's brief says (and it is not denied) that the motion was "for a new trial as to all issues." On January 7, 1958 the trial judge ruled that as to liability the verdict should not be disturbed, but as to damages it was excessive. He therefore ordered that there be a new trial as to damages only, unless plaintiff agreed to accept a reduction of the verdict to $1,925. Plaintiff refused to accept that sum so, by order dated January 22, 1958, a new trial was ordered as to damages only.
The new trial resulted in a verdict of $3,425. Defendant moved for a new trial on the ground that this verdict was excessive. That motion was denied.
Defendant now appeals from the order of January 22, 1958, arguing that it was error to order a new trial as to
damages only, and that a new trial should have been ordered as to all issues. Defendant also appeals from the judgment upon the verdict in the second trial, on the grounds that (a) plaintiff's attorney made improper prejudicial statements during his summation, (b) the verdict in the second trial was excessive, and (c) the trial court erred in excluding certain testimony offered by the defendant.
We find no error in the order for a new trial as to damages only. Defendant argues, quoting from Hendrikson v. Koppers Co., Inc. , 11 N.J. 600, 608 (1953), that "a new trial may be limited to damages only, where that is the only question with respect to which the verdict or judgment is wrong and it is fairly separable from the other issues, and the best interests of justice will be served by granting a partial new trial." Defendant cites many cases in support of that proposition.
However, the rationale of all of the cases cited by defendant is that the trial court should not order a new trial as to damages only, when the verdict is too low , unless the court is sure the lowness of the verdict is not part of a compromise upon liability. Obviously that rationale does not apply to cases in which the trial court orders a new trial as to damages only because the verdict is too high. There the trial court must consider an entirely different question, namely, whether the verdict is so excessive in amount as to show that the jury was so moved by passion or prejudice that its verdict as to liability must be equally tainted. When it is so excessive then, also, the trial court should not limit the new trial to damages only. Kress v. City of Newark , 8 N.J. 562 (1952).
In the case at bar it seems to us that the defendant does not urge, on this appeal, that the verdict in the first trial was so excessive in amount that it tainted the entire verdict, even as to liability. If defendant does intend to so argue we find no basis for the argument.
However, the judgment which followed the second trial must be reversed because of the remarks made by plaintiff's
attorney in his summation. Plaintiff's attorney ...