*1 PLAINTIFF-APPELLANT, HAGER, v. CHARLES CHARLES WEBER, DEFENDANT-RESPONDENT. Reargued April Argued 16, 1951 December May Decided 1951. *3 M.
Mr. Francis Seaman argued cause for appellants Mr. John G. Stochel the cause for argued respondent. *4 opinion court was delivered by J. There was a $6,500 of judgment for plaintiff' Heheb, on a verdict returned in the Middlesex County Court in an action in tort for and negligence; on defendant’s appeal Division of the Appellate Superior Court found that the verdict was “clearly excessive” and accordingly reduced the- $3,500, award to with direction for a new trial as to damages- if should refuse plaintiff consent to the reduction. The trial had denied a judge motion for a new trial on the asserted! of the weight that “the is against ground from passion and resulted and is excessive under of the verdict was Only quantum prejudice.” Division. in the Appellate attack motion. on appeal plaintiff’s certified the cause for
We “does Buie 3 :59-5 at It was the outset argued upon discretionary power pass trial abolish the court’s of the action trial,” and motion a new verdict on for jury’s for except unassailable the trial judge regard of with the doctrine discretion,” in “plain keeping abuse of & A. Inc., Lines, N. L. 46 (E. Air Nelson v. Eastern Newman, N. J. in Batts this court by followed 1942), a new the refusal of that, assessed, so 503 (1950); that, events, Appel at all here is unexceptionable; 1:2-20(a), of Rule did not the principle late Division apply 4:2-6, Buie Division by to the Appellate made applicable cause alia, involving review of any inter that on a providing, “the determined the verdict by jury, fact of issues of evidence, verdict, if to the shall contrary issues, these directed set aside.” After consideration of we sufficiency question constitutional argument and the on for cited cause came 1:2-20(a), supra; Buie in due course. reargument
Plaintiff now contends that the particular provision this jurisdiction rule would enlarge granted Division the Constitution and as Appellate “the of trial courts jurisdiction well impair by depriving such jurisdictions inferior attribute judgments fact,” and it therefore as to constitutes excess of finality The cases of Co. v. power. constitutional Central Railroad J. L. 561 & A. Tunison, 1893), (E. Flanigan Co., 63 N. J. L. 647 Smelting A. Guggenheim invoked; there is mention of are but no State v. Knight, 1921). N. J. L. (E.& review the remedy. concerns It is a remedial
Appellate Article secured interference procedure against legislative IT, III, VI, 2, Section Section paragraph Section paragraph *5 1, V, 2, XI, IV, and Article 3. Section paragraphs paragraph VI, I, It liad the same under Article Section security para- 1, V, 3 of Constitution graph Section paragraph 1844. the question
The
cases in
laid it down
early
this State
subject
“a
of whether a new
was
trial should be granted
on that
court,
itself to the
addressing
discretion of the
been
has never
accoimt the
in that
judicial action
sphere
Delaware, Lacka
subjected to the least superintendency.”
Nevelle,
wanna and Western
Co. v.
51 N. J. L. 332
Railroad
law,
At
the action thus taken
not
1889).
common
for,
reviewable on
error,
strict
as was
Mr.
pointed out
Justice
in
case,
Dixon
nor the
“Neither
decision
state of the
on
case which was
would
part
rendered
form
record,
and at
law the
common
record
was review
only
error,”
able on
and therefore, “no matter whether questions
of law were
not,
involved or
the writ of error would bring
which
up
nothing by
would be disclosed.”
questions
in
Appeals
from the
equity
courts which derive
their procedure from the
law
civil
the entire record
up
bring
for
proceedings
both
reconsideration
the case
on
Baker,
the law and the facts.
v.
431,
Sohland
15 Del. Chan.
141 A. 277, 58 A.
R. 693
v.
(1927); Arnsperger
Craw
247,
ford,
Md.
413A.
The
(1905).
writ of error is
it is an
statutory origin;
writ at
original
common
law,
ex delito
grantable
justiliae, to bring
final
up
judgments
of inferior tribunals
with
clothed
judicial
for
power,
review
in matters of law alone
apparent upon
record. Falkner
Dorland,
54 N. J. L. 409
Ct.
(Sup.
Qee,
1892); Evans v.
14 Pel.
In Central the refusal to review Court Supreme of the old was sued out the Session under c. of the court of a new trial circuit the L., granted which 33), expressly Laws of (Pamph. p. law either of for error of review final right before judgment that ruled fact; or and Appeals of and the Errors Court of included courts the the constitutional of circuit jurisdiction a review whether “the without to decide and right finally be taken new trial shall and that cannot be granted, right impairing materially from them substantially without Kohl v. But in their was void. that statute powers,” so State, the 163 of Session 59 N. J. & A. c. 1896), L., 246; p. Laws of 1894 Gen. Stat. p. (Pamph. the entire record a where new trial in a criminal case
directing with the writ returned trial, had the proceedings upon * * * error, upon revealed injury “manifest or wrong con the trial,” evidence adduced the upon the was reversed on viction of murder of the first degree the to “justify insufficient evidence was that the ground Dixon de Mr. statute, the Justice verdict.” In support crime, the testimony a conviction warrant clared: “To a reasonable beyond accused the guilt should prove that, a nature this, e., if it be of such i. If it fails to do doubt. considered, satisfy any will not it fairly fully when doubt, of mind, guilt reasonable beyond thoughtful accord does manifest wrong, a conviction accused, then The jurors criminal law. of administering to our system ing determination of for the tribunal the appropriate compose cannot they in a civil cause fact, but questions controverted without evidence capable the plaintiff find a verdict for justly in the plaintiff’s to believe person of leading prudent find a justly cannot they in a criminal cause claim, and ra which, any viewed upon verdict for the state in every doubt of guilt must leave reasonable tional aspect, such verdict party aggrieved mind. Against considerate the trial court for a new law, to appeal the common can, by cited such can appeal under the statute above trial, and now be in criminal the appellate made causes to tribunal.” McGill, Chancellor in a that opinion holding dissenting that witnesses, said case turned the credibility'' of upon credi that, the issue of statute on did not contemplate witnesses was bility, negli observe opportunity be the case is gible factor, “and that the remnant upon ‘manifest’ “it must determined de but rather novo” that either that is clearly appears wrong, conviction because it of evidence or because clear against it has by passion, prejudice, been influenced in some way He the case cited perversion corruption.” 110 N. People Cignarale, (1888), holding 7. 33 neither instance court of first nor the appellate *7 “can the jury, the function of lawfully usurp appropriate and the neither for that of can substitute its own judgment where of diverse and jury the facts are reasonably capable the see, inferences.” But we shall is not that, as opposing nature rule or of the under review scope provided consideration.
Then came the case of Flanigan Guggenheim Smelting Co., cited There, o. 139 supra. Session Laws of 1899 L., (Pamph. p. 333), to invest the Court of purporting Errors and Appeals power with on to error reverse a judgment founded on the verdict of a if the verdict was against the clear of the excessive, was was set aside as an unconstitutional impairment integrity in constitutional courts that it detracted from their faculty to render fact, “final as to judgments not as though final law.” to The statutory was regulation deemed an assault * * * * * * upon character, “organic jurisdiction and old authority” Court made Supreme' immutable Constitution of 1844. It was that thought the act deprived “certain judgments that are within the protection of of “a Constitution” quality that has hitherto inhered in them,” e., i. “the attribute of as finality fact;” to and that it was at aimed “not the mere machinery of justice, not at the boundaries of jurisdiction, but at the' conclusiveness of the the effect In fine, record itself.” proceeding—at was considered that a statute “calculated to make a constitu tional court subordinate in of fact to it was matters as which the consti supreme” would to that extent “alter originally authority tution its court, nature, of such its diminish change and its that impair jurisdiction;” also, regula legislative tion which would “in modify respect important judgment matters that are make the judg case” and present every ment them “as to but a mere no the end longer litigation intermediate phase of strife” in and effect substance legal tends “to alter the character and qualify it,” so authority court that has pronounced “are law judgments constitutional courts of common inherently reviewable as Thus the case to the facts.” there under review was from Harris v. Vander distinguished Executor, veer’s 21 N. J. Eq. holding the decrees in of the former Court were Prerogative herently a statute appealable, therefore granting appeal from that court to the Court of Errors Appeals was constitutional.
But in the later case of Knight, State v. cited supra, Court of Errors and invoked the Appeals principle Kohl case sustain c. 349 of the Session Laws of 1921 L., 951; (Pamph. p. B. S. 2:195-19), when providing the entire record of the had the trial proceedings upon case criminal has returned with error, been the writ of *8 defendant as may error that the verdict was assign against the evidence, and a that new trial be awarded weight n if such the The case. contention was made that act the invaded constitutional right the. of by jury (Constitution I, Art. 7, in paragraphs that the verdict the of of in a criminal case is final jury and cannot be nullified by judicial action. Chief Justice Gummere said: “But is this State, not Dixon, so. Mr. Justice in his in Kohl opinion 59 that, N. J. L. out the points although jurors compose the tribunal for appropriate the determination of contro- fact, verted of cannot find a questions they justly for verdict which, evidence viewed in a criminal case upon the state in leave reasonable doubt of guilt must any rational aspect, such a verdict in mind; and every against considerate to the law, can, the the appeal common party aggrieved of substitution” trial,” and the “mere trial court for new performance the the the court for trial court appellate interdict. the this function does not violate constitutional and Knight the Kohl The indubitable principle constitutional in the then cases is that the inherent “finality” a verdict review did not render immune to appellate courts in that it of the jury the province plainly transcended There was no the evidence. was not sustainable on “justly” The so fundamental. constitutional of error protection constitutional office tribunal invade the cannot appellate the evidence where it may the it jury; merely weigh its inferences substitute fairly susceptible divergent But, if the verdict be so own for that of jury. rise to far as to to the evidence contrary weight give passion, prejudice, conclusion of inescapable it serve to the judgment, cannot partiality, support an interference with correction of error is not appellate or the attri security constitutional inferior court or the on the facts inherent its finality judgments bute of As constitutional of trial right by jury. respects appel late corrective there is no essential difference be process, a verdict that from misdirection and a verdict tween comes function. that constitutes palpable perversion jury A rests sustain upon competent verdict that testimony conclusive; in such is ordinarily inference implied finding Co., converso, L. e it is not. Smith v. Lorillard N. J. Ct. not set aside a 1902). may verdict (Sup. because, in opinion, its merely upon have Knickerbocker Ice well found otherwise. Co. might Anderson, This 1865). Ct. (Sup. concep tion of the evidence the trial court as governs court; as the to civil and crimi appellate well applies 98 N. Karpowitz, causes. State v. J. L. nal
211 Kick, 97 N. J. L. 92 Ct. 1923); Boesch v. (Sup. Queen L. Jennings,
affirmed 98 183 v. 1922); 93 N. J. 353 82 Donnell, L. Ct. Floersch v. 1919); (Sup. Abeles, N. J. L. 357 Juliano Ct. (1912)); (Sup. J.N. L. 510 Gt. is so 1935). And this notwithstand (Sup. ing difference in standard in civil of proof cases, criminal that has a in other circum although bearing Mitchell, stances. 391, Ct. Helvering Sup. U. S. 630, 82 Ed. 917 (1937).
Uow, writ by 1947, Constitution of the common-law of error has been superseded therein by appeal provided. VI, V, Article 1, Section 2. Under paragraphs paragraph of the section, same Court and the Supreme Appellate Division of the Superior Court exercise “such may original jurisdiction as to the determina may necessary complete tion of cause on review.” of any This grant original juris diction is significant of a a review of provide matters design of fact law, as well of in as with the' historic accordance function anof Eor the and the varied uses “appeal.” history in American and “appeal” see English jurisprudence, McPhail, Vaill v. R. 83 A. I. There (1912). is no whatever for ground framers of the supposing Constitution had in mind an in law cases that “appeal” would merely perform the'office in old writ error mode and scope review.
But, I, Article 9 of by the Constitution paragraph inviolable; trial by is made and the right jury review on from a appeal rendered on a jury verdict is ex necessitate restrained this by constitutional guaranty. held As Kohl and Knight cases, an into inquiry evidence, either in civil or a case, criminal standard, the cited governed by derogation of trial by secured right jury law. The organic award of a new trial on where the appeal verdict rise clearly gives to the inference of passion, prejudice, or partiality does not constitute undue with interference the constitu tional or the constitutional right integrity
212 tribunal, the has its consti jury inferior for transcended the the ad party the substantial injury tutional to sphere affected; justice and on the versely plainest principles by is remediable the appellate process. this fundamental error rule under the Constitution Indeed, that came to be the a new trial on ground 1844. The or refusal of award was the evidence weight that the was against verdict v. Gaffney Illings discretion. reviewable on for abuse of error worth, Payne, Robinson v. 1917); N. 490 & A. 90 J. L. (E. Moss, L. 108 J. Gee 99 L. & A. v. 1923); N. J. 135 (E. Gasiorowski, L. 110 N. J. & A. 1931); Gormley 160 (E. Lines, Inc., Air & Nelson v. Eastern 1937); 287 (E. Co., 135 Paving & Asphalt New Jersey Salvato v. supra; Newman, In supra. Batts v. N. J. L. 185 & A. 1947); (E. was entered under review case, last-cited judgment be of 1947 Constitution Artical of the the Judicial before “implies discretion effective. The exercise of judicial came ac It takes action. arbitrary conscientious judgment, case circumstance? count of law and the particular the judge and conscience and is 'directed the reason ” 333 J.N. just Maloratsky, Eq. 112 result.’ Hoffman & A. 1933). evi Whether a verdict is against weight dence, defined, as thus is in essence a that is judicial question deemed an of the constitutional part generally integral State, remedial ex The appellate rel. Cartmel v. process. Co., 84 Surety 123, 871, Aetna Fla. 92 24 Casualty So. & Co., L. A. R. Hanna v. Central Electric States (1922); 210 Iowa 232 N. Ernst v. W. Hudson (1930); Co., River R. 24 How. Pr. 7.) (1862). (N. rule,
Under and the judge appellate tribunal are the same criterion. The controlled inquiry for each is whether the verdict is against weight the stated And this is sense. now appellate even no a new function there was motion for trial in though the court of first instance.
We find the verdict excessive as irresistibly so to give rise the inference of or par passion, prejudice, and by that standard to be tiality, palpably against Co., of the evidence. Vide Bowes v. Public Railway Service J. JV. Ct. Salvato v. New (Sup. 1920); Jersey Co., Asphalt supra. Defendant does not Paving complain of the limitation the new trial to damages. Division is Appellate affirmed.
Case, I that a verdict (concurring). agree may *11 be as to impeached when, of the contrary weight when, and only it is so as strongly against to show mistake, passion, or prejudice partiality; this, because of the virtue imputed our by Constitution to a jury But, verdict. as I read the in the majority record, opinion light it the principle abandons that an application to the trial court for a new trial is within the discretion of that court and that the decision thereon may be disturbed for an except abuse of that discretion. That rule is old and very of wide it acceptance. universality of bemay from the gathered text and the citation of the in 46 cases J. C. p. § and 5 C. J. Title p. Error S. Appeal 1619. §
There is sound reason for the rule. There can be no doubt that the atmosphere of a trial and of courtroom generally is better known to the trial than can judge be re- possibly flected by any printed report If the proceedings. record error, discloses legal party may direct to an go court; if he appellate to prefers make application to the trial, for a new he judge should be held to the decision there rendered unless the decision is so- out of line as to constitute, in the opinion court, an appellate abuse of discretion.
There seems to have a developed reluctance on the part our Hew Jersey appellate courts to make that lest holding perchance be to the trial disagreeable that judge. Why. exist, should I do feeling not know. Everyone conversant with court knows what the proceedings “abuse of expression more that there nothing reproachful
discretion” means and the trial committed there that it than is in finding event, have for generations harmful error. In any judges still, are almost borne under that castigation up bravely courts, it with the federal everywhere, enduring including no say I much more hurtful we deem it composure. a field of discretion which trust the trial with judge longer But need not he the language move without reversal. may be coined. The retained; could phrase easily substitute an old and useful is to preserve phase important thing the trial judge. discretion of jurisprudence—the Lines, in Nelson Eastern Air of the law was stated v. Some Inc., J. A. unanimous 128 N. & voted (E. Co., 133 in Natale Automobile Finance court and followed Newark Morning N. L. 253 A. (E. 1945); Hartley J. & Co., & A. 134 N. L. 217 v. New 1946); J. Salvato Ledger (E. Co., & 135 N. J. L. 185 Paving Jersey Asphalt Newman, Inc., 3 Batts v. Joseph (1950), 1946); and other eases. affirm the Divi- Appellate
I am voting I the amount sion consider that verdict when because clearly with the evidence indicates the jury compared prejudice moved passion, partiality was *12 exercised an abuse of discretion reason; and, that, I a new trial for that when say granting else I am than the court’s went saying nothing ruling far from the mark to become reversible error. enough Justice Vanderbilt, For Justices affirmance—Chief Burling Case, Heher, Oliphant, Wacheneeld, Ackerson—7.
For reversal—None.