DeVita, J.d.c. (temporarily assigned).
The plaintiff, Albert J. Wojcik instituted suit for injuries sustained as a result of the alleged negligence of Ralph Pollock, defendant, on April 28, 1963. Plaintiff, while seated in a vehicle commonly known as a "Mushmann" on the premises of his employer, Wakefern Food Corporation, was allegedly struck by defendant's truck. Defendant, by way of defense, alleges that on May 17, 1963 plaintiff executed a release in the amount of $1,000. Plaintiff counters said defense by alleging that even if the aforesaid release were executed and even if the sum of $1,000 were given him, the release is not enforceable at law. The alleged unenforceability of the release is premised on plaintiff's contention that defendant procured the document by fraud. In order to prove fraud plaintiff seeks to introduce, inter alia, evidence of the subsequent severity of the injuries allegedly sustained and the resultant medical ramifications of said injuries.
The court is presented with two questions of law: (1) whether the issue of release should first be tried by a jury, thereby severing it from the other legal and factual issues inherent in the case, and (2) if severance is ordered, what is the proper scope of the proofs relative to the release issue?
The question of severance is governed by R.R. 4:43-2(a) which provides in pertinent part:
"(a) The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counter-claim, third-party claim, or separate issue * * *"
R.R. 4:43-2(b) is irrelevant to a disposition of the instant question: the court is not presented with a motion to try the issue of liability separately, but with a motion to try one of the component issues vis a vis the liability of defendant. Raroha v. Earle Finance Corp., Inc., 47 N.J. 229 (1966); Annotation, "Propriety of separate trials of issues of tort liability and of validity and effect of release," 4 A.L.R. 3 d 456 (1965).
A motion for severance under R.R. 4:43-2(a) is in the discretion of the court, the purpose being to avoid prejudice to any of the parties, or to further convenience. Galler v. Slurzberg, 22 N.J. Super. 477 (App. Div. 1952); Motor Trucking Co., Inc. v. DeGennaro, etc. Inc., 13 N.J. Super 531 (Law Div. 1951); Ciocca v. Hacker, 4 N.J. Super. 28 (App. Div. 1949); Shapiro v. Rice, 5 N.J. Super. 133 (App. Div. 1949); Hogan v. Hodge, 6 N.J. Super. 55 (App. Div. 1949); Hagan v. Gallerano, 66 N.J. Super. 319 (App. Div. 1961).
The reasons for granting motions to sever particular issues are not enunciated by the New Jersey case law, although strong adherence is given to the language of R.R. 4:43-2(a). Convenience or prejudice are the recognized criteria. See Galler v. Slurzberg, supra; Ciocca v. Hacker, supra. Courts in other states, however, have interpreted the meaning of convenience or prejudice. One of the main factors considered by them in allowing separate trials for matters of convenience is the fact that if the release is valid the litigation would be at an end, and time and expense are saved for the court and the parties involved. In allowing separate trials in order to avoid prejudice, the following factors have been considered: (1) when a negligence action involves a release, the release issue is often disregarded by the jury; (2) a single trial creates an atmosphere which would produce an unconscious influence upon the jury; and
(3) a single trial might confuse the jury. Ross v. Service Lines, Inc., 31 F. Supp. 871 (D.C. Ill. 1940); Dienstag v. Kiamesha-Concord, Inc., 283 App. Div. 736, 127 N.Y.S. 2 d 908 (App. Div. 1954); Burton v. Niagara Mohawk Power Corp., 280 App. Div. 356, 113 N.Y.S. 2 d 483 (App. Div. 1953); Fulmer v. Sovocool, 26 App. Div. 2 d 889, 274 N.Y.S. 2 d 215, 216 (App. Div. 1966).
The courts of New Jersey have recognized the utility of the severance procedure relative to the issue of a fraudulently procured release and have exercised the inherent discretion embodied in R.R. 4:43-2(a). Raroha v. Earle Finance Corp. and Hagan v. Gallerano, supra. It is also recognized that when the alleged fraud is in dispute, a question for the jury is ...