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Wenner v. McEldowney & Co.

Decided: July 11, 1968.

EDWIN FREDERICK WENNER, PLAINTIFF-APPELLANT,
v.
MCELDOWNEY & COMPANY, DEFENDANT-RESPONDENT



Conford, Labrecque and Fulop. Fulop, J.s.c. (temporarily assigned).

Fulop

This is an appeal from a judgment in favor of defendant entered by the trial court notwithstanding a jury verdict in favor of the plaintiff for damages in the sum of $30,000.

The plaintiff, Edwin Wenner, was hired by Belford Seabrook at an hourly wage to repair the roof of a carriage house situated on a farm owned by the defendant McEldowney & Company, a New Jersey Corporation. Plaintiff alleges that when he reported to do the work Mr. Seabrook directed that the work be done under the supervision of his stepson, Craig McKinley. When plaintiff got up on the roof, McKinley allegedly negligently pushed a piece of wire on the end of a broomstick through an opening in the roof or

under a shingle in such manner as to dislodge the plaintiff and cause him to fall to the ground. Plaintiff was injured.

Although plaintiff in his pleadings alleged other acts of negligence on the part of the defendant corporation, his proof was confined to the act of McKinley above referred to. Plaintiff contended that he was employed by Seabrook individually but that McKinley was acting for the defendant corporation. It was essential to plaintiff's recovery to establish that McKinley was the servant of the corporation and that plaintiff was not, for if they were both employed by the same employer plaintiff's remedy against the employer was confined to recovery under the Workmen's Compensation Act. R.S. 34:15-7, 8 and 9. See Freppon v. Hittner, 91 N.J. Super. 9 (App. Div. 1966) and Mazzuchelli v. Silberberg, 29 N.J. 15 (1959).

At the end of the plaintiff's proof, defendant moved for involuntary dismissal. The motion was denied. At the end of the entire case the defendant moved for judgment in its favor. The trial judge reserved decision on this motion and submitted the case to the jury. The jury was asked to answer five interrogatories and render a general verdict as provided in R.R. 4:50-2. In answers to the interrogatories the jury found that McKinley was acting in the matter as the employee of the defendant Corporation and not as the employee of Seabrook and that Wenner and McKinley were not working for the same employer. The jury also found McKinley negligent and plaintiff not guilty of contributory negligence, and rendered a general verdict for the plaintiff in the sum of $30,000.

After the verdict, defendant orally renewed its motion for the disposition of the case in its favor by the court as a matter of law. The court again reserved decision. The trial was concluded on October 9, 1967. By letter dated October 17, 1967, the trial judge granted judgment in favor of the defendant notwithstanding the verdict. The court found that taking the evidence in the light most favorable to the plaintiff, it established that Wenner and McKinley were employed

by the same employer whether the employer was Belford Seabrook individually or McEldowney & Company or both of them jointly and that there was no basis in the evidence warranting the jury finding that Seabrook employed Wenner individually and simultaneously employed McKinley on behalf of the corporation.

Plaintiff contends that it was error to enter judgment against him notwithstanding the verdict for the following reasons:

1. The trial judge had no power to enter judgment notwithstanding the verdict in the absence of a written motion as provided by R.R. 4:51-2(c).

2. R.R. 4:50-2 makes it mandatory that the judge enter judgment in accordance with the jury verdict where, as here, the answers to interrogatories given by the jury and the general verdict rendered by the jury are all consistent.

3. The verdict was supported by the evidence, there was a factual issue for the jury, and the court erroneously substituted its own appraisal of the facts for that of the jury.

As to the first point, plaintiff has misread the rule. R.R. 4:51-2(a) reads:

"(a) If a motion for judgment is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the verdict or within 10 days thereafter or if no verdict is returned, within 10 days after the jury's discharge. If the motion is denied and the case has been submitted to the jury, the motion may be renewed within 10 days after the verdict or the discharge of the jury. The ...


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