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Moich v. Passaic Terminal & Transportation Co.

Decided: January 24, 1964.

BEATRICE MOICH AND DANIEL MOICH, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
PASSAIC TERMINAL & TRANSPORTATION CO., INC., AND JOHN L. SUMMERS, DEFENDANTS-RESPONDENTS, AND CHARLES W. HARTEL AND ANNA J. HARTEL, DEFENDANTS-APPELLANTS



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.

Collester

Defendants, Charles W. Hartel and Anna J. Hartel, appeal from a Law Division judgment following a jury verdict awarding damages to plaintiff Beatrice Moich of $17,000 and to her husband Daniel Moich, suing per quod , of $3,000, and a finding of no cause for action in favor of the codefendants Passaic Terminal & Transportation Co., Inc. and John L. Summers. They also appeal from an order denying their motion for a new trial.

On August 5, 1959 at approximately 11:45 A.M. plaintiff Beatrice Moich was injured when the automobile in which she was a passenger, owned by defendant Charles Hartel and operated by his wife, defendant Anna Hartel, collided with a pole on the northwest corner of the intersection of Naugle and Williams Streets in Closter, New Jersey. Mrs. Hartel, with Mrs. Moich and two children, had stopped on Naugle Street in the vicinity of the Lutheran church, which is located at the southeasterly corner of the intersection formed by Naugle Street and Closter Dock Road, to pick up Mrs. Hartel's young son who was attending Bible School. Neither Mrs. Hartel nor Mrs. Moich could recall whether the car was parked on the north or south side of Naugle Street, but it is undenied that, when parked, it was half a block east of the intersection.

Naugle Street runs in a general easterly and westerly direction. A short distance west of the church, it is intersected on

the south side by Closter Dock Road, which enters Naugle Street diagonally from the southeast and joins with Naugle Street which then becomes known as Old Closter Dock Road as one proceeds west of the intersection. Across from the entrance of Closter Dock Road, on the north side of Naugle Street, an unimproved road known as Williams Street intersects Naugle Street at a right angle and runs in a northerly direction.

There is a full-stop sign located on Closter Dock Road a short distance before it intersects with Naugle, and there is a white line across the road with the word "Stop" painted in letters six feet in length. A telephone pole is located two or three feet off the curb at the northwesterly corner of Naugle and Williams Streets. Both Closter Dock Road and Naugle Street are approximately 30 feet in width.

After Mrs. Hartel's son came out of school and entered the car, Mrs. Hartel started up and proceeded westerly on Naugle Street toward the intersection. She testified that as she entered the intersection she observed a truck, owned by the defendant Passaic Terminal & Transportation Co., Inc., and operated by the defendant John L. Summers, coming toward the intersection on Closter Dock Road at her left. She said the truck was then at, or near, the stop sign on Closter Dock Road and its speed was about 25 miles per hour. Mrs. Hartel stated she believed the truck would stop at the stop sign and so she proceeded to cross the intersection at a speed of 15 to 20 miles per hour. She testified that she suddenly realized that the truck was not going to stop and that her car was directly in its path; that she swerved her car to the right and mounted the curb at the northwesterly corner of Naugle and Williams Streets, colliding with the telephone pole. Mrs. Hartel admitted that she was operating the car at a speed of 15 to 20 miles per hour and did not apply her brakes before the collision with the pole.

The truck came to a stop at the center line of Naugle Street and there was no contact between the truck and the Hartel car.

Plaintiff Beatrice Moich testified that she first observed the truck approaching on Closter Dock Road when the Hartel car was coming into the intersection. She said that the truck went past the stop sign and continued into the intersection without stopping. She stated that Mrs. Hartel was looking out of the window toward the truck saying, "I don't think he is going to stop," or, "It is coming too fast," when she saw the pole "coming up" and the impact with the pole occurred.

Mrs. Moich testified that the Hartel car entered the intersection on the right-hand side of Naugle Street; that it traveled in a straight line through the intersection and she did not remember the car swerving to the right. She admitted that in her pretrial deposition she had testified that Mrs. Hartel had turned to the right. When questioned further, she stated she didn't remember which version was correct.

Defendant John Summers, the truck driver employed by the codefendant Passaic Terminal & Transportation Co., Inc., testified that he was driving behind a car as he was proceeding northwesterly on Closter Dock Road toward the intersection of Naugle Street. He said he knew there was a stop sign at the corner and when he applied the brake pedal, his brakes failed. He stated he seized the hand brake and passed the car ahead; then passed the stop sign. He kept applying the hand brake and brought the truck to a stop. He said the front of his truck stopped at the center line of Naugle Street and the rear still extended back into Closter Dock Road.

Summers further testified that he first observed the Hartel car when it started up in front of the church where it was parked at the southerly curb; that it proceeded into the intersection on an angle toward the northerly curb. He said that when the Hartel car passed directly in front of him, or somewhat past him, and he was about to enter the intersection at the point where the word "Stop" was painted on the roadway, he observed Mrs. Hartel looking at him and that she was "talking." He testified that the Hartel car was then at about the center of Naugle Street and "kind of went off like that at

an angle." He said he did not observe the Hartel car swerve; it proceeded in practically a straight line.

Plaintiff Beatrice Moich, then two and one-half months pregnant, sustained injuries during the collision, when her right shoulder struck the dashboard and her head and neck went through the windshield. She was admitted to the Pascack Valley Hospital for threatened abortion and separation of the right shoulder and remained there for five days. When released she was required to keep her arm in a sling for three months and could do no housework. She eventually gave birth to a normal child.

Thereafter Mrs. Moich was required to undergo surgery for relief of the shoulder injury, known as a Bennett arthroplasty. This operation consisted of the removal of the outer one inch of the shoulder blade by chisel, and it left a four inch scar. There was evidence that she suffers from some permanent loss of mobility and strength in her arm and shoulder. She was awarded a verdict of $17,000.

Mr. Moich was required to pay $925 for medical expenses and his wife was unable to do house work or to care for their child for a substantial period after the accident. The jury awarded him a verdict of $3,000.

I.

Defendants allege the trial court erred in dismissing their motion for a new trial on the ground it lacked jurisdiction.

The verdict of the jury was rendered on September 19, 1962. Six days later, on September 25, defendants having determined to apply to the trial court for a new trial, their counsel set in motion the procedure of serving plaintiffs and codefendants with notice that such application would be made.

Under R.R. 4:5-2 service of the notice of motion could have been effected by mailing the same to attorneys for the other parties by registered or certified mail. The rule provides that when service is made by mail, it is complete upon mailing.

However, defendants proceeded to attempt service by delivery of a copy of the notice of motion to such attorneys. Accordingly, defendants' counsel delivered to a representative of New Jersey Lawyers Service copies of the notice with instructions to serve the same upon the other attorneys. Counsel for the codefendants were served on that day.

Attempts by such agent to serve attorneys for the plaintiffs were unsuccessful on four consecutive days since no one was at their office. When Hartel's attorney learned on October 2 that service had not been effected, he attempted service himself and was able to serve plaintiffs' attorneys on October 4. The latter refused to acknowledge timely service since it had not been made until 15 days after the entry of the verdict.

Defendants' motion for a new trial was denied on the ground that the trial court lacked jurisdiction because defendants had failed to serve the notice of motion within the 10-day period following the entry of the verdict pursuant to R.R. 4:61-2. We agree with the court's disposition of the motion.

Under the clear language of R.R. 1:27B(c) the court is without power to enlarge the period for taking any action under R.R. 4:61-2. Notwithstanding the existence of extenuating circumstances, it consistently has been held that the trial court is without discretion to extend the time given by the rule. Mastranduono v. Resnick , 28 ...


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