141 A. 814 | N.J. | 1928
This suit was commenced in the Supreme Court, Essex county, by the administratrix ad prosequendum of decedent, to recover damages from the defendants for the death of plaintiff's intestate, and on the first trial the judge of the Circuit Court granted a nonsuit. This was reversed in an opinion by this court (
On the second trial there was a verdict for the plaintiff. Following this the defendant obtained from the Circuit judge a rule to show cause, returnable before the Supreme Court, why the verdict should not be set aside and a new trial granted, on the sole ground that the verdict of the jury was against the weight of the evidence, and that the granting of the rule should not operate as a waiver of any objections or exceptions granted to defendants, but each of them was thereby expressly reserved for the purpose of an appeal. Thereafter, the defendants filed five reasons for setting the verdict aside and granting a new trial. The first four were that the verdict of the jury was contrary to the weight of the evidence as granted in the rule, and the fifth was that the verdict was contrary to the charge of the court. The defendants could have relied upon the limitations contained in the rule and refrained from finding the last cause for reversal, but chose to write it down and argue it, and are bound by it.
The Supreme Court in its per curiam opinion on the rule to show cause, after reciting all the reasons alleged for a new trial, including the one that the verdict was against the charge, said that they were unwilling to disturb the verdict for any of the reasons alleged for a new trial, and that the rule to show cause was therefore discharged, and an appropriate order and judgment were thereupon entered.
Thereafter, the defendants appealed to this court from the whole of the judgment entered, and specified ten grounds of appeal. The first, that the court at the close of plaintiff's case refused to nonsuit the plaintiff on the ground that she had failed to disclose any negligence on the part of the defendants, and that the plaintiff's decedent was guilty of contributory negligence; also that the court, at the close of the whole case, refused to direct a verdict for the defendants on the ground that plaintiff had failed to prove the issues raised in the pleadings, referring to certain matters claimed to be deducible from the evidence; that the court erred in ruling on certain questions relating to certain witnesses and certain testimony; that the court erred in refusing to charge certain requests of defendants, and erred in charging the jury as to a certain request of the plaintiff. *500
The defendants on the rule to show cause have set down reasons that the verdict was contrary to the weight of the evidence in varying phases, and also contrary to the charge of the court, all of which was decided; but, whether so or not, they were precluded from making those matters the subject of appeal, as will hereafter appear.
This court in Goekel v. Erie Railroad Co.,
Again, this court in Catterall v. Otis Elevator Co.,
There was, however, left open to the defendant-appellant the argument in this court of his ground of appeal concerning questions of evidence; but these were not argued, and, consequently, are considered to have been abandoned.
In A. Makray, Inc., v. McCullough,
Defendant-appellant seeks to avoid the effect of the rule to show cause by contending that there was no evidence to go to the jury on the second trial upon certain issues submitted, and, therefore, they are not precluded from arguing that those issues should not have been sent to the jury because not within the pleadings; that the complaint alleges an express invitation, and it does not suggest an implied invitation.
The plaintiff-respondent answers this by saying that the ground was assigned for setting aside the verdict as being against the weight of evidence on the rule to show cause, and, *502
consequently, cannot be reviewed by an appellate court under reserved exceptions, citing the cases above referred to, and several others. And also says that each and every reason was argued, and, whether so or not, all the reasons in support of the rule are res judicata. See McMichael v. Horay,
It was stated in the opinion on the former trial of this case (Cleaves v. Yeskel,
So here on the pleadings and evidence the Supreme Court held that an implied invitation could be inferred, and that was right.
This leaves, apparently, the only exceptions arguable here, numbers 9 and 10. Number 9 is, that the court erred in refusing to charge the request of the defendants, which is set out; and number 10, that the court erred in charging the jury in five certain respects set out. But this, upon reflection, is seen not to be arguable, as it is res judicata, made so on the decision of the rule to show cause, as one of the reasons alleged for a new trial was, that the verdict of the jury was contrary to the charge of the court. This was argued and decided adversely to the defendants by the Supreme Court in its per curiam opinion on the rule.
It must be perfectly obvious that when the defendants urged upon the Supreme Court on the rule to show cause that the jury's verdict was against the charge of the court, they presupposed, and doubtless urged upon that tribunal that the charge was without legal error, and, therefore, should have been followed by the jury, and had it been, the verdict would have been different. This being so, it certainly cannot now be available to the defendants to say to this court on appeal that, although they represented to the trial court that the charge was faultless, nevertheless, a certain charge should *503 not have been made, and the charge as made contained errors, and that had the charge been different in those respects, the verdict should have been, and probably would have been, different.
But it may be that if defendant specifies in his reasons on the rule that the verdict was against certain portions of the charge as made, or requests refused, specifying them, instead of including the whole charge, as here, that he may thereafter argue on appeal that matters charged or the denial of matters not so specified, were erroneous.
In re Walsh's Estate,
There is, of course, "a substantial identity" in the charge, having regard, though it has, to its validity on the one hand and its alleged invalidity on the other. The defendants having alleged that the verdict was against the charge could have alleged in the court below any other matter in respect to that charge which they desired to exploit on the rule, and are concluded by the decision thereon as to everything they could have urged. Doubtless, however, they could not there have argued that the charge was both right and wrong; neither can they do so between the court below and this court.
Here we have a change of position on appeal, and that is not permitted. A defendant on rule to show cause cannot say that the verdict was against the charge of the court, without affirming that the court was right and the jury wrong. Being defeated on the rule to show cause, he cannot afterwards say the court was wrong, and if, in the respects pointed out, the court had made a proper charge, or refrained from making an improper one, the verdict should and might have been different. In other words, defendant cannot take an inconsistent position between the trial court on rule to show cause and the appellate court on error or appeal.
In 3 C.J. 710, it is stated that where a party contends in the trial court that a particular section of the statute of limitations is applicable, he cannot on appeal shift his position and urge that a different section applied. And where an action on a note is tried on the theory that it is barred unless it is taken out of the operation of the statute by a new promise, plaintiff cannot claim on appeal that, as the note bore interest, it did not become due until actual demand.
A party may take alternate positions as to certain matters or things, but not inconsistent ones with reference to the very same identical matter or thing.
And in this state in Fritz v. Sayre Fisher Co.,
While at common law a defendant could not plead inconsistent defenses, yet under the statute of 4 and 5 Anne, ch. 16, it was provided that either party might plead, in answer to any pleading, such matters as he should think necessary, and this was adopted in this state as section 116 of the Practice act (Comp.Stat., p. 4088). Shallcross v. West Jersey and SeashoreRailroad Co.,
Upon the whole case we are of opinion that the judgment under review should be affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, MCGLENNON, KAYS, HETFIELD, DEAR, JJ. 16.
For reversal — None.