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Nylander v. Rogers

Decided: December 16, 1963.


For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.


[41 NJ Page 237] This suit involves three claims arising out of personal injuries to two plaintiffs, who are husband and wife. They were, very properly, asserted separately in three counts of a single complaint. R.R. 4:33-1(a), 4:31-1 and 4:10-2. The first two dealt with the respective personal injuries; the third concerned the husband's claim for consequential damages specified as the medical expenses of his wife and loss of

consortium. This third claim is clearly an independent one. Higgins v. Schneider, 61 N.J. Super. 36, 43 (App. Div. 1960), affirmed o.b. 33 N.J. 299 (1960). Defendant admitted liability and the amount of damages was the only issue at the seven-day trial. The injuries were serious, the wife's extremely so.

The Appellate Division decided on the defendant's appeal that the trial judge did not err in refusing to instruct the jury to return separate verdicts on the husband's claims. 78 N.J. Super. 566 (1963). Certification was granted. 40 N.J. 500 (1963). We consider the conclusion correct under the facts, but feel the reason should be spelled out differently to some extent.

The defendant held liability insurance coverage to the extent of $100,000 for injuries suffered by each person. He was represented at the trial by counsel retained by his carrier. Whether he is financially responsible for any recovery in excess of the policy limits does not appear. The insurer was of the opinion that the husband's consequential claim was legally includible, under proper construction of the contract, in the $100,000 limit of its liability for the wife's injuries. We assume this position to be at least not frivolous, although the policy and the question are not before us. The insurer obviously also appreciated before trial that the recovery for the wife's injuries if added to that on the consequential claim might exceed the limit. It must be further held to have known that its position on the interpretation of the contract could not be determined in this action and could not be protected for possible assertion later unless there were separate verdicts on the count for the husband's personal injuries and on the count for his consequential claim. It had been specifically held in an analogous situation that a general verdict lumping such claims cannot be dissected for this purpose and would forever destroy the possibility. Smith v. Phoenix Indemnity Co., 119 N.J.L. 522 (E. & A. 1938). See also Nuzzi v. United States Casualty Co., 121 N.J.L. 249 (E. & A. 1938); Gugliotta v. Great American Indemnity

Co., 124 N.J.L. 116 (E. & A. 1939); but cf. Sullivan v. Aetna Casualty & Surety Co., 14 N.J. Misc. 890, 190 A. 72 (Sup. Ct. 1935), s.c. 115 N.J.L. 253 (E. & A. 1935) and Terminal Construction Corp. v. Bergen County, etc., District Authority, 18 N.J. 294, 338 (1955), commented upon in Schnitzer, "Civil Practice and Procedure," 10 Rutgers L. Rev. 351, 366-367 (1956).

The insurer therefore requested separate verdicts, which Smith had said was the only proper thing to do. 119 N.J.L., at p. 525. However, counsel did not give this reason to the trial judge, saying only that "such a verdict would be helpful to certain aspects of the defendant's position." While the court knew of the policy limits, he was not advised of the insurer's legal view or difficulty until defendant's motion for a new trial on the husband's claims on this ground.

The trial judge seems to have denied the request at the time it was made on the basis that separate verdicts on separate claims of one claimant are legally improper, absent consent of all counsel. This is clearly an erroneous view. More than a century ago, even under ancient practice, where a single plaintiff asserted distinct causes of action against a single defendant, it was held to be entirely proper to direct the jury to find the issues and assess the damages for each separately. Ward v. Ward, 22 N.J.L. 699 (E. & A. 1850). Perhaps the judge had in mind those pre-1948 cases where a single plaintiff had a single cause of action but divided the various items of damage into separate counts and the court said, we think too broadly, that a single verdict was the only proper one. E.g., Melosh v. Public Service Railway Co., 4 N.J. Misc. 361, 362, 132 A. 666 (Sup. Ct. 1926). Cf. Dewar v. Ruehle, 137 N.J.L. 304 (Sup. Ct. 1948).

While our rules are silent on the subject, there can be no doubt of the power of a trial judge, on his own motion or the request of a party, to direct a jury to assess and report damages separately on a plaintiff's separate claims or even, in special situations, on items of a single claim. The power should be freely and liberally exercised whenever the court

feels or counsel indicates the desirability of its use. While discretionary in the sense that failure to direct separate verdicts would rarely if ever constitute error absent a reasoned request by at least one counsel,*fn1 the power should be applied almost as a matter of course where the claims are independent, as here, and in other situations where some realistic benefit is pointed out. In cases like this one when it is shown that future collateral questions may be affected, the grant should be well nigh automatic. Any confusing burden on the jury can be avoided by delivering to it a list of the separate verdicts to be returned. R.R. 4:52-2.

The reason for the use of the power is identical with that which so strongly recommends the special verdict procedure, R.R. 4:50-1, i.e., the ascertainment and isolation of any error, consequent frequent avoidance of full-blown appeals and full-scale retrials, and the more exact administration of justice. Cf. Terminal Construction Corp. v. Bergen County, etc., District Authority, supra (18 N.J., at p. 319); Board of Education, Asbury Park v. Hoek, 66 N.J. Super. 231, 236-37 (App. Div. 1961), reversed in part on other grounds 38 N.J. 213 (1962); Marchese v. Monaco, 52 N.J. Super. 474, 485-86 (App. Div. 1958), certif. denied 28 N.J. 565 (1959); 5 Moore, Federal Practice, 2212-2218 (2d ed. 1951); Sunderland, "Verdicts, General and Special," 29 Yale L.J. 253 (1920). The use of separate damage verdicts particularly permits accurate consideration of adequacy or excessiveness as well as the matter of substantive propriety in appropriate ...

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