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Moran v. Feitis

Decided: October 20, 1961.


Gaulkin, Kilkenny and Herbert. The opinion of the court was delivered by Gaulkin, J.A.D.


In this automobile accident case the jury brought in a verdict of $2,200 for the infant plaintiff George J. Moran, and $781 for the father for the exact amount of the medical bills incurred. Plaintiffs moved for a new trial as to damages only. The trial judge granted a new trial to the infant plaintiff as to damages only "unless the defendant agrees * * * to increase the verdict $1,500 * * *." The briefs raised some doubt whether defendant agreed to the additur , but at the oral argument both counsel stipulated that defendant had done so, and defendant withdrew the cross-appeal he had filed from the allowance of the additur.

We need consider only one of plaintiff's grounds of appeal, that the trial court should have ordered a new trial as to damages only without conditioning it upon the $1,500 additur , which plaintiff contends was far too little. Defendant, on the other hand, contends (1) that the $2,200 was ample and consequently the $3,700 is more than ample, and

(2) if there is to be a new trial, it should be as to all issues, including liability. Taking the last point first, we agree with the trial court that liability was clear enough to permit a new trial as to damages only. Coll v. Sherry , 29 N.J. 166 (1959); Dahle v. Goodheer , 38 N.J. Super. 210 (App. Div. 1955). The sole question is whether conditioning the order for a new trial on the $1,500 additur was proper.

The accident happened on April 4, 1957, when the infant was about 18 years old. At the time of the accident he was employed as a press operator by Westinghouse at a gross weekly salary of $84, which yielded him a take-home pay of $68. He was unable to return to work until July 14. In his summation plaintiff's counsel claimed a loss of wages during this period of approximately $1,000, which appears to be a fair estimate. A month after he returned to work, on August 13, 1957, he was inducted into the Army, where he remained for two years. He was not discharged for medical reasons but because his period of service was over.

However, plaintiff offered in evidence an exemplified copy of his army medical history which he claimed supported his oral testimony that during the two years in the army he suffered as a result of the injuries he had sustained in the accident. The trial court refused to allow the record in evidence because it consisted in large part of illegible photostatic copies of hospital and other records: that ruling is one of the grounds of appeal. While our views hereinafter expressed make it unnecessary to decide the propriety of that ruling in the present appeal, we state for future guidance that illegible records may be properly excluded.

Plaintiff and his doctors testified that he had suffered pain and temporary and permanent disability as the result of injuries to his head and his back sustained in the accident.

Defendant did not dispute that plaintiff had sustained an injury to his head, but disputed that the head injury was as serious as plaintiff claimed, and contended that he had fully recovered from it. However, defendant denied that plaintiff had suffered any back injury in the accident, and contended that if he was suffering from any back injury at

the time of the trial (which defendant also denied) it was caused by his army duties and not by the accident.

After the accident plaintiff was taken to the Elizabeth General Hospital. He was stuporous and vomiting. Dr. Horre, senior surgeon at the hospital, called into consultation Dr. Senerchia, Jr., a neurologist, and Dr. Ehrlich, an eye doctor. They diagnosed plaintiff's injury as a concussion with contusion of the brain. X-rays were negative, but a spinal tap showed pressure on plaintiff's brain. At the time of plaintiff's admission his eye fields could not be examined because of his stuporous condition. Subsequently plaintiff was found to be suffering from papilledema of the left eye and hemiopy, both indicative of a swelling of the brain. Plaintiff was discharged from the hospital on April 25, 1957 as "improved" but still showing papilledema.

Plaintiff testified he left the hospital with pains in his head, no vision in his left eye, and both knees and right elbow bothering him; he was confined to bed at his home for weeks, but still suffered from headaches, dizzy spells, blackouts, pain in the lower back, clogging and bleeding of the nose, weakness of his knees and difficulty with his vision.

Dr. Senerchia testified that when plaintiff was admitted to the hospital he had severe headaches and was suffering from brain damage. Electroencephalogram tests of April 9, 18 and 25 indicated abnormal brain-wave condition, but with gradual improvement; a test on May 24, 1957 showed the brain-wave was "within normal limits." The doctor testified that on May 21, 1957 "I noted * * * that there was some discomfort on deep forward bending, * * * he complained of some discomfort in the back, and I noticed some soreness to palpation in the left lower back, in other words, to palpating or deep pressure of the left lower back * * *"; and that on June 11, 1957 "he complained of some low back pain * * * he did show some tenderness at the level of the lower ribs bilaterally." On June 11 the papilledema was still present, and plaintiff still complained of severe headaches occurring once a week. On cross-examination the doctor testified: "May 21 -- that was

the first time I saw him as an out-patient after he left the hospital -- he began complaining, 'I get a pain once in a while above the belt line.' This was May 21, 1957. 'If I make a sudden turn or bend, I get a pain like an electric shock that lasts a few seconds in the lower back.'"

Dr. Senerchia testified that on May 18, 1960, over three years after the accident and a few days before trial, he found the plaintiff still showed "residuals of a head injury."

Dr. Palin, the plaintiff's family doctor, stated that prior to April 4, 1957 the plaintiff was in excellent health. He first saw plaintiff May 6, 1957. At that time plaintiff complained of severe headaches and pain in his lower back when he moved or bent over. He had the same complaints on May 18, 20 and June 6. On June 21 plaintiff again saw Dr. Palin, at which time he complained of dizziness and nausea. The doctor noticed that his pupils reacted slowly to light. Dr. Palin conferred with Dr. Senerchia and as a result ordered plaintiff admitted to the Rahway Hospital on June 22, 1957, where he remained under observation for several days. Subsequently, Dr. Palin examined plaintiff several times, during which examinations he still complained of headaches and back pains. Although, when Dr. Palin examined him two days before trial, plaintiff ...

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