Conford, Collester and Labrecque.
[97 NJSuper Page 92] Defendant appeals from the grant of a new trial in this action for recovery of damages sustained by plaintiff's decedent during the four days between the day he was severely burned while a patient in the defendant's
hospital and his death from such injuries.*fn1 The jury had returned a verdict of no cause for action. The new trial was granted solely for the purported reasons that inaccuracies in the transcript of the trial were so extensive as to deprive the plaintiff of an adequate record for appellate review and that the trial reporter had declined to certify the transcript because not accurate or true. This trial was the reporter's first experience in reporting a trial in court. He had been engaged because of a shortage of qualified reporters in Hudson County.
The matter came to the attention of the trial court when it was considering a motion for a new trial on conventional grounds, including alleged errors in the court's charge, only to find a number of obvious errors and omissions in the transcript of the charge. The court thereupon undertook pursuant to R.R. 1:6-6 to correct the mistakes in the transcript of the charge by calling in the reporter in the presence of counsel. After three half-days of effort the court revised the transcript and produced a "Corrected Charge" which it describes in its opinion granting the new trial as follows:
"After comparison between the court's and the s, the court was morally convinced that a fair representation of the substance of the charge eventuated, though expressed inarticulately [ sic ] in the revision. The court nevertheless was left with a feeling of insecurity that the revised charge was completely accurate for there were some points in the revision which the court could not literally reconcile with its own notes of the charge and there were also some omissions in the notes as transcribed."
We have ourselves read the original and revised versions of the charge and entertain the view that the trial judge did an excellent job of accurately repairing the occasional passages where errors appeared in the transcript. It may be observed that the correct rendition is frequently obvious
from the nature of the error in the text as first transcribed. Merely by way of illustration, and not to be at all comprehensive as to all types of errors, the reporter on several occasions renders "active wrongdoing" as "act of wrongdoing" and "negligent act" as "negligence act." Some errors are typographical or as to spelling. Plaintiff has not argued below or here that the revised charge is not a substantially accurate version of the instructions given the jury by the judge. But in any event, having regard to the exceptions taken to the charge by plaintiff at trial, and the present representations by plaintiff as to the alleged errors in the charge which will be asserted on appeal, we are of the opinion that the record is now eminently adequate to enable the fair appellate consideration thereof.
The exceptions or objections taken to the charge were these: (1) the court should not have submitted the issue of contributory negligence to the jury;*fn2 (2) there was error in telling the jury that the operation of the hospital was a governmental function; (3) the court charged proximate cause in the "time-honored" language rather than by using the definitions in the "new cases" which counsel deemed "far better"; (4) there was error in defining active wrongdoing to the extent that the jury was told that the "act of commission had to be a wrongful act."
During the argument of the motion the trial court properly expressed concern with the question whether any of the errors in the transcription of the charge, even as originally made, involved "matters of substance which would prevent a proper review by an Appellate Court of the points which Mr. Chasan [attorney for plaintiff] wishes to make and the court will be called upon to decide." See State v. Smith, 84 N.J. Super. 452, 457
(App. Div. 1964); People v. Chessman, 35 Cal. 2 d 455, 218 P. 2 d 769, 772-773 (Sup. Ct.), certiorari denied 340 U.S. 840, 71 S. Ct. 29, 95 L. Ed. 616 (1950); Murphy v. St. Paul Fire and Marine Ins. Co., 314 F.2d 30, 31 (5 Cir. 1963).*fn3 The judge then declared that insofar as the exceptions relating to contributory negligence and the definition of active wrongdoing were concerned, the transcript as it then existed "clearly raised the issues." We fully agree. But in his final disposition of the motion the judge failed to return to the application of his previously stated and soundly conceived criterion for judging the relief sought, and in this we think he was led into error.
The asserted inadequacy of the record for purposes of appeal can be appraised only in terms of the grounds available for presentation on appeal. See the cases cited above. Assuming, as we do not now decide, that all four objections to the charge were stated in terms sufficiently explicit to preserve them as grounds of appeal, R.R. 1:5-3, we are well satisfied that the transcript of the charge, particularly as revised by the court, fully lays the basis for appellate argument of each of the substantive contentions desired to be made by plaintiff. Two of the exceptions to the charge have no relationship at all to the precise text of the language of the charge. The others are ...