Conford, Freund and Labrecque. The opinion of the court was delivered by Freund, J.A.D.
This is an appeal from a final judgment of the Superior Court, Law Division, rendered in favor of the plaintiff, Sabina Pawlowski, in the amount of $23,000 for personal injuries and property damage. The trial under review was held pursuant to our earlier remand of this matter for a new trial as to damages only. Pawlowski v. Marino , 59 N.J. Super. 511 (App. Div. 1960).
This case has been tried on three different occasions. At the first trial there was a mistrial. At the second trial, held in June 1959, the jury returned a verdict of $20,000 in damages for plaintiff's personal injuries and property damage. We reversed the judgment on the ground that the verdict was grossly excessive. The third trial resulted in the verdict for $23,000, presently being challenged. On the motion for a new trial, the trial judge declined to disturb the verdict. He reasoned that if the jury believed plaintiff's medical testimony and disbelieved defendant's, it could properly have arrived at its verdict.
All the details relating to the automobile accident that is the basis of this action are set forth in our earlier opinion (59 N.J. Super. 511). Since defendant has conceded liability, there is no need to repeat the underlying facts. The only real issue is whether the verdict is excessive and, if so, what remedial action should be taken. This requires a consideration of the medical proofs.
The nature of the medical proofs submitted at the 1959 trial is indicated by our previous opinion and need not be repeated here.
On March 25, 1960, about a month after we reversed the 1959 judgment, plaintiff consulted Dr. Stanley L. Brown for the first time and informed him of pains in her lower back, running into her right leg, and of other subjective complaints generally worse than those she had previously reported to her other physicians. Aside from Dr. Brown's testimony, the basic proofs concerning disability and injury were virtually the same in both trials.
Dr. Brown stated, as had Doctors Milnamow and De Palma, that the subluxation of the cervical spine was permanent in character, although minimal. But Dr. Brown added that Miss Pawlowski was also suffering from pains in her lower back which were causally connected with the automobile accident. He described her condition as spondylolisthesis, being the forward displacement of the fifth lumbar or the first sacral vertebrae. On cross-examination, however, he qualified his opinion as to the cause of her low back pain by admitting that if he were given the hypothesis that plaintiff did not complain about low back pain for a period of one year following the accident, he would say the back complaint was not connected with the accident.
Our study of the record in this regard leads us to conclude that there is practically no reliable justification for believing that plaintiff told any of the doctors who examined her for more than two years after the accident that she had any pain in her lower back. In this connection, we note the testimony of one of defendant's medical witnesses, Dr. George Grenhart, who had examined Miss Pawlowski on January 21, 1958, October 6, 1958 and on September 15, 1960, and who agreed with Dr. Brown that she was suffering from spondylolisthesis. However, he pointed out that 95% of such cases are congenital in origin. From plaintiff's medical history, his examination of her X-rays and his personal observations, he concluded that plaintiff's spondylolisthesis was "definitely congenital."
The gravamen of defendant's argument is that the completely new claim of low back injury is false. From that it is argued that the amount of the verdict must have been to a large degree influenced by the introduction of an exaggerated claim of injury to the lower back, over and above the injury to the cervical spine complained of at the previous trial, and, the verdict being thus clearly excessive, defendant was entitled to another trial on the issue of damages.
Although defendant has made an impressive factual demonstration of the lack of good faith in the low back injury claim, we cannot say as a matter of law that this after-discovered infirmity is so completely lacking in substance as to justify a conclusion that the trial court should have stricken all the proofs relating to that injury at the trial, as was requested by defendant's motion. The plaintiff was at least entitled to have the jury pass upon her credibility on this issue, notwithstanding the heavy weight of the credible proofs to the contrary. Franklin Discount Co. v. Ford , 27 N.J. 473, 489 (1958); Ferdinand v. Agricultural Ins. Co. of Watertown, N.Y. , 22 N.J. 482, 62 A.L.R. 2 d 1179 (1956); McCray v. Chrucky , 66 N.J. Super. 124, 130 (App. Div. 1961).
On the motion for a new trial, however, a court has greater latitude in which to correct a manifest denial of justice. It is then required to set aside the verdict as against the weight of the evidence if it clearly and convincingly appears that the verdict resulted from mistake, partiality, prejudice or passion. Melone v. Jersey Central Power & Light Co. , 18 N.J. 163, 170 (1955); Fisch v. Manger , 24 N.J. 66, 80 (1957); R.R. 1:5-3(a); R.R. 4:61-1(a). A greater degree of insufficiency in the proofs is required to take a case from the jury or to direct a verdict than would justify the judge's legal discretion in ...