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Nylander v. Rogers

Decided: April 4, 1963.

GUSTAVE NYLANDER AND MARGARET NYLANDER, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
ROBERT H. ROGERS, DEFENDANT-APPELLANT



Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.

Foley

Defendant appeals from a judgment entered in the Law Division upon a jury verdict.

Plaintiffs were passengers in an automobile which was in collision with the automobile of defendant; both were severely injured. Margaret Nylander brought action to recover damages for her personal injuries; Gustave Nylander, in separate counts, sued to recover for his personal injuries and consequential damages he suffered as a result thereof, and per quod , on his wife's claim. The jury returned a verdict of $82,700 in favor of Margaret, and a verdict of $40,603.19 for her husband.

Defendant then moved for a new trial as to both plaintiffs setting out eight grounds. Upon the return of the motion defendant abandoned his attack on the verdict entered in favor of Margaret Nylander. As to the verdict for Gustave, defendant expressly withdrew the first seven of the grounds listed in his application for new trial, and relied solely upon a contention that the trial court erred in having "denied the application of defendant to instruct the jury to bring in two verdicts for plaintiff Gustave Nylander." The trial court denied the motion. Subsequently, the judgment in favor of Margaret was satisfied. The sole ground of this appeal iterates the alleged error above quoted.

It appears that defendant carried an automobile liability insurance policy with limits of $100,000/300,000, and that the trial judge became aware of this during one or more of the numerous settlement conferences which were held in the course of the seven-day trial. However, neither the policy

itself, nor a specimen of it, was before the trial judge prior to the motion for new trial, nor is it before us on this appeal.

We gather from a reading of the proceedings on the motion for new trial that it was alleged that one of the provisions of the policy was capable of an interpretation that so much of the verdict in favor of Gustave Nylander on his per quod claim as exceeds $100,000, when combined with the award to his wife, would not be covered by the policy.

At the outset, we note that although Gustave's losses resulting from his own personal injuries, and those which were consequential of his wife's personal injuries, were pleaded separately, historically, a single verdict embracing both elements of damage has been held sustainable. See Dewar v. Ruehle , 137 N.J.L. 304 (Sup. Ct. 1948). We find nothing in the Revised Rules implementing the Judicial Article of the 1948 Constitution of New Jersey in derogation of this basic concept. However, R.R. 4:50-1 does provide for special verdicts:

"The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. * * *"

Defendant argues that if the trial judge had charged the jury to bring in separate verdicts for Gustave -- one representing damages for his personal injuries and the consequences of the same, and another for the damages he sustained as the result of his wife's personal injuries -- the extent of liability of the insurance company would have been readily ascertainable, providing, of course, that defendant's interpretation of the policy, as related above, is correct. No doubt this is so.

The use of a special verdict lies within the trial court's discretion. Board of Education, Asbury Park v. Hoek , 66 N.J. Super. 231, 236 (App. Div. 1961), reversed on other grounds 38 N.J. 213 (1962). We construe the rule to mean that it may be invoked by the trial court sua sponte , or that a request for a special verdict may be addressed to the discretion of the court, by any party to the action. However, we do not interpret the ...


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