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Gilday v. Hauchwit

Decided: May 9, 1966.

ELSIE GILDAY, PLAINTIFF-RESPONDENT,
v.
LUCILLE L. HAUCHWIT, DEFENDANT, AND ALFRED G. HAUCHWIT, DEFENDANT-APPELLANT-RESPONDENT, AND PETER CARLO AND THE BOARD OF COMMISSIONERS FOR THE CITY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS-APPELLANTS



Gaulkin, Labrecque and Brown. The opinion of the court was delivered by Labrecque, J.A.D. Gaulkin, S.j.a.d. (dissenting).

Labrecque

Defendants Alfred G. Hauchwit, Peter Carlo and the Board of Commissioners for the City of Passaic (Passaic) appeal from a judgment in favor of plaintiff following a jury verdict.

On May 2, 1963 plaintiff, while crossing East Main Avenue at the intersection of Washington Place, Passaic, was struck by an automobile operated by defendant Hauchwit as the latter made a left turn from Broadway (a continuation of Washington Place). The traffic lights at the intersection were allegedly not working at the time and traffic was being directed by defendant Carlo, a city policeman. The weather was clear, the roads were dry and it was still light.

Mrs. Gilday testified that when she arrived at the northeast corner of the intersection traffic was moving on East Main Avenue and she waited until she received a signal from Carlo to go ahead before starting to cross. As she was walking on the crosswalk, and had reached a point about six feet from the opposite side of the street, the Hauchwit automobile, which was in the process of making a left-hand turn, came at her. Although she quickened her pace to try to get out of the way, she was struck. She was severely injured and the quantum of the verdict in her favor is not in issue.

Plaintiff testified that after she had been signalled to cross, and when she was halfway across East Main Avenue, Carlo turned his back to her. Hauchwit testified that Carlo looked "over his shoulder" before signalling him to make a left-hand turn. Carlo had no recollection of having signalled

plaintiff to cross or of being aware of her presence prior to the accident.

The trial judge denied motions for involuntary dismissal made at the close of plaintiff's case and, again, after all parties had rested. The liability of all three defendants was then submitted to the jury in a charge which precluded a finding against Passaic unless the jury found that Carlo was guilty of active wrongdoing or negligent commission. McAndrew v. Mularchuk, 33 N.J. 172, 181, 193 (1960); Allas v. Rumson, 115 N.J.L. 593, 595 (E. & A. 1935). The jury subsequently requested and received further clarification as to the meaning of the terms negligent commission and omission.

Thereafter the jury returned a verdict that:

"We, the jurors, find in favor of the plaintiff, Mrs. Gilday, and against the defendants, Hauchwit, and Officer Carlo and the City of Passaic to the total sum of $17,000, Mr. Hauchwit $10,000, Officer Carlo, guilty of commission, $7,000."

The jury was then polled. The finding against Hauchwit was unanimous. Eleven jurors voted to hold Carlo, and the finding against Passaic had the support of ten of them.

The trial judge, on motion, molded the verdict to provide for judgment:

"In favor of the plaintiff and against the defendants in the sum of $17,000."

Motions for a new trial were denied.

Defendants Carlo and Passaic urge that (1) their motions for involuntary dismissal and for judgment in their favor were improperly denied; (2) the evidence did not and could not support a finding that defendant Passaic, through defendant Carlo, was guilty of active wrongdoing; (3) their motions for a new trial were erroneously denied, and (4) the trial judge's molding of the verdict was in error.

Defendant Hauchwit also challenges the verdict, urging that the jury's attempt to apportion the damages between

defendants rendered the verdict an illegal one which could not be molded by the trial judge into an enforceable judgment.

We turn first to consideration of the verdict. There can be no question but that the jury's attempt to apportion the liability of defendants rendered it irregular. Malinauskas v. Public Serv. Interstate Transp. Co., 6 N.J. 269, 274 (1951). The question to be determined is whether the irregularity was such as to vitiate the judgment, and, if so, whether the new trial should be as to all issues or as to damages only.

While the best method of correcting a verdict is to allow the jury to do so before it is discharged, Fuller v. Chamberlain, 52 Mass. (11 Met.) 503 (Sup. Jud. Ct. 1846), a verdict defective in form may be molded by the trial judge to reflect the jury's intention where such intention is clear and manifest. Turon v. J. & L. Construction Co., 8 N.J. 543, 552 (1952). However, defendants contend that the defect inherent in the present verdict was more than one of form.

In Ross v. Pennsylvania R.R., 5 N.J. Misc. 811, 138 A. 383 (Sup. Ct. 1927), on which defendants rely heavily, the jury rendered a verdict against defendant railroad and a verdict in a similar amount against its engineer, in an action under the Death Act arising out of a grade crossing accident. A rule to show cause why the verdict should not be set aside was made absolute, the court holding:

"* * * The wording of the verdict indicates an intention to apportion the damages as between the two defendants, making each one of them liable for the amount specified in its findings, and awarding the plaintiff the sum total of these two amounts. Whether its purpose was other than that expressed by it in the verdict actually rendered cannot be guessed at by the court. In the absence of anything even suggestive of a different purpose on the part of the jury, we must accept its statement as indicating it; namely to apportion the damages between the two joint wrong-doers."

To somewhat the same effect was Rafferty v. Public Serv. Interstate Transp. Co., 13 N.J. Misc. 80, 177 A. 357 (Sup.

Ct. 1934), in which a new trial was ordered because the jury had rendered verdicts in different amounts against the defendant bus owner and its driver. Other cases in which juries attempted to apportion damages, or otherwise control the legal effect of the judgment, are: Trovato v. Capozzi, 14 N.J. Misc. 24, 182 A. 269 (Cir. Ct. 1935), affirmed 119 N.J.L. 147 (E. & A. 1937); Robb v. John C. Hickey, Inc., 19 N.J. Misc. 455, 20 A. 2 d 707 (Cir. Ct. 1941), and Walder v. Manahan, 21 N.J. Misc. 1, 29 A. 2 d 395 (Cir. Ct. 1942). In Trovato a direction in the verdict that the amount of damages awarded be paid at the rate of $14 per week was held to invalidate the verdict; in Robb the verdict was set aside because the jury had found both plaintiff and defendant guilty of negligence, but by comparing the degree of their negligence, arrived at a verdict of $2,000 for plaintiff. And in Walder the circuit judge set aside a verdict "in favor of the plaintiff and against the defendants in the sum of $20,000, $10,000 against each defendant," under the apparent impression that the only New Jersey case in point was Ross v. Pennsylvania R.R., supra (5 N.J. Misc. 811), which he said should be followed "until the Court of Errors and Appeals rules to the contrary."

Plaintiff urges that the Court of Errors and Appeals had already ruled, and the question sub judice is controlled by Jones v. Pennsylvania R.R., 78 N.J.L. 571 (E. & A. 1910). In that case a verdict was returned against joint tortfeasors in the sum of $3,000 each and judgment was entered for total damages of $6,000. When the verdict was returned, the clerk (who was at that time permitted to receive the verdict) had formally inquired of the jury:

"* * * Gentlemen, hearken to your verdict as the court has ordered it recorded; you find the defendants the Pennsylvania Railroad Company and the Public Service Corporation guilty, and assess the damages of the plaintiff at the sum of $6,000 * * *."

To this the jury all agreed and judgment was entered accordingly. In affirming the judgment the court held:

"It is clear, we think, that the court below properly held that the verdict as thus recorded was the verdict intended to be rendered and actually rendered by the jury. * * * The query that he [the clerk] put and the assent of the jury to it sufficiently showed that their assessment of damages was $6,000 and not $3,000, and warranted the entry of the verdict and judgment accordingly."

Under our present rules inquiry of the jury by the court to ascertain its intention in aid of a proper judgment is permitted -- and frequently called for. Turon v. J. & L. Construction Co., supra, 8 N.J., at pp. 551-552 (citing Jones). Generally, the answer of the foreman to such inquiry is to be taken as the answer of the individual members in the absence of objection by an individual juror. Id., at p. 552. Where, in response to such an inquiry, the intention of the jury is made clear, the verdict may be molded in consonance therewith. Id., at pp. 552-553. Cf. Rillo v. Eastern Carrier Corp., 132 N.J.L. 414 (E. & A. 1945).

Here, on the motion to mold the verdict, the trial judge found, and we agree, that the jury's verdict clearly and unmistakenly evidenced its intention to award plaintiff the sum of $17,000 against all three defendants. This was made manifest by the first part of the verdict where the jury found "in favor of the plaintiff, Mrs. Gilday and against the defendant Hauchwit and Officer Carlo and the City of Passaic in the total sum of $17,000 * * *." It was confirmed by the forelady's ...


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