
    FRANK L. ESPOSITO, PLAINTIFF-RESPONDENT, v. MICHAEL LAZAR, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 29, 1948
    
    Decided December 27, 1948.
    
    
      Before Judges Jacobs, Eastwood and Bigelow.
    
      Mr. Maurice C. Brigadier argued the cause for the defendant-appellant.
    
      Mr. Andrew O. Wittreich argued the cause for the plaintiff-respondent.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal in a negligence action from a judgment of the Hudson County Court of Common Plea-s in favor of the plaintiff-respondent.

Upon the defendant’s invitation, the plaintiff accompanied him in the defendant’s car to the premises of Royal Motors at Jersey City. Subsequently they returned to the car where the defendant unlocked the door to permit plaintiff to enter. While plaintiff was entering, the door was closed upon his right hand causing a fracture of the second metacarpal. The plaintiff testified that “the door was slammed” on his hand by the defendant; the defendant testified at one point that he did not close the door and at another point that he did not remember closing the door. Another witness, Mr. Domanowski, who had accompanied the plaintiff and the defendant, testified that he heard plaintiff’s outcry when his hand was hurt, although he had not seen the door closed. There were no motions for non-suit or directed verdict and the trial judge submitted to the jury the issue of whether the defendant had negligently closed the door on plaintiff’s hand causing the injury. The court instructed the jury that if they found that the plaintiff was entitled to recover because of the defendant’s negligent action they would then consider and fix the amount of damages. The jury returned a verdict in favor of the plaintiff in the sum of $1200 and thereupon plaintiff obtained a rule to show cause why a new trial limited to damages should not be granted. The trial court determined that the damages were inadequate and that a new trial limited to damages would be granted unless the defendant consented to an increase to $3500. The defendant declined and a subsequent jury trying the single issue of damages rendered a verdict in the sum of $3,000 for the plaintiff. The defendant appeals on the ground that the trial court erred in limiting the new trial to damages.

The propriety of confining a new trial to damages or other question with respect to which the verdict is wrong, if separable, has long been recognized in our state. See Gaffney v. Illingsworth, 90 N. J. Law 490 (E. & A. 1917) and annotations in 2 N. J. Misc. R. pp. 1246-1251. See also Rule 3:59-1. Thus in Robinson v. Payne, 99 N. J. Law 135, 142 (E. & A. 1923) the Court of Errors & Appeals held that where it appears from a review of the entire case that the jury has determined “the question of liability fairly and upon sufficient evidence” and that the sole error relates to the i-ssue of damages, “the court has. power to confine the new trial to the question of damages, and in the interest of justice it should exercise the power.” See Petrosino v. Public Service Co-ordinated. Transport, 1 N. J. Super. 19, 61 Atl. (2d) 746 (App.Div. 1948). And in Rossman v. Newbon, 112 N. J. Law 261, 263 (E. & A. 1934) the same court in sustaining the limitation of a new trial to damages where it appeared that the jury had neglected to assess damages, with respect to one of the plaintiffs although the issue of liability was determined in his favor (Cf. Tompkins v. Pilots Association for Bay & River Delaware, 32 F. Supp. 439 (D. Pa. 1940) ) again points out that such action rests “in the sound discretion” of the trial court.

Defendant does not dispute the foregoing but contends that the jury which returned the $1200 verdict had not made separable determinations but had illegally compromised both liability and damages. If that was so, then the trial judge should have awarded a new trial on all issues rather than one confined to damages. See Juliano v. Abeles, 114 N. J. Law 510 (Sup. Ct. 1935); DePeole v. Passaic City Steam Laundry, 5 N. J. Misc. R. 687, 690 (Sup. Ct. 1927). The real question remaining, therefore, is whether, from an examination of the entire record, the assertion that the jury did not find in favor of the plaintiff on the issue of negligence but compromised that issue along with the quantum of damages, is supported.

Prior to the accident plaintiff worked in his mother-in-law’s business as a baker, receiving a regular weekly wage of $50. Since the accident he has not worked as a baker but has received substantially the same weekly amount as a salesperson in her bakery store. His medical bill was $110 which included $20 for X-rays and $90 for thirty visits to his doctor for hand massages. He testified that the prevailing wage for bakers in regular industry is $90 per week but that he would be unable to perform such work because of the injury to his hand. His doctor testified that upon examination he found that the plaintiff had suffered a “fracture of the second metacarpal of the right hand” and that this was confirmed by x-rays which were taken but not available. He did not express any opinion as to whether the condition of plaintiff’s hand would interfere with the performance of -his duties as a baker although he did state that he thought “there has been some impairment of function.” On -the other hand, the doctor called by the defendant testified that in his opinion the fracture of the second metacarpal, although it left a slight honey prominence, did not result in any impairment of the function of the hand or in any condition which would interfere with plaintiff’s performance of his work as -a baker. On cross-examination he again stated that althotígh plaintiff has the boney prominence, he was “sure he has normal function.”

It seems clear that if the jury believed the medical testimony introduced by the defendant, it could, after having determined the issue of liability in favor of the plaintiff, properly assess damages at or about $1200. Upon the hypothesis that it accepted such evidence, the verdict actually rendered by the jury would in no sense suggest any inconsistency or compromise. Cf. C. A. Lippincott & Bro. v. Matazzo, 8 N. J. Misc. R. 330, 332 (Sup. Ct. 1930). In the light of the defendant’s contention, at the trial, and his supporting medical testimony, that plaintiff had suffered no serious injury or functional impairment, we are not impressed with the defendant’s present contrary position that the plaintiff’s injuries were so serious and the verdict of $1200 so small that there must have been a compromise on the disputed issue of liability as well as damages.

The determination as to whether a verdict for inadequate damages represents an illegal compromise properly rests, in the first instance, with the trial judge who has had the advantage of observing the witnesses and conducting the trial. Where, as here, he has, by limiting the new trial to damages, determined that the issue of. liability was fairly and separately decided on sufficient evidence by the first jury and judgment has been entered upon a proper assessment of damages by a second jury, the appellate court is loath to upset his discretionary action and thus compel litigation anew on all issues. Cf. Gaffney v. Illingsworth, supra; Rossman v. Newbon, supra. Considering the entire proceedings including the testimony, the trial judge’s action on the rule to show cause, and the subsequent verdict of $3,000, we find nothing which would render the original verdict of $1200 so grossly insufficient as to establish an illegal compromise on liability warranting interference with the trial judge’s action. Indeed, examination of the authorities indicates that limitations of new trials to the issue of damages have been sustained where the suggested disparity between the original verdict and a reasonable quantum of damages was far greater than that before us. See Rossman v. Newbon, supra, at p. 262; Stott v. Schantz, 6 N. J. Misc. R. 1046 (Sup. Ct. 1928).

The judgment below is affirmed.

Bigelow, J. A. D.

(dissenting): I regret that I am unable to agree with my colleagues. The defendant-appellant assigns as a. reason for reversal that the new trial which the Common Pleas granted, should have been allowed on the whole case, if granted at all, and not limited to damages. He contends that the verdict on the first trial was a compromise and, as a step in his argument, urges the inadequacy of the damages awarded by the jury. The plaintiff-respondent answers that the evidence justified the small sum awarded. But the plaintiff moved successfully for a new trial on the ground that the verdict was too small. A verdict for personal injuries is not set aside for inadequacy when the failure to award a greater sum can reasonably be supported by the evidence, but only if the inadequacy is so clear as to raise an inference of mistake or partiality on the part of the jury. Kitten v. North Jersey St. Ry. Co., 74 N. J. Law 286 (Sup. Ct. 1907); McHugh v. Soffer, 24 N. J. Misc. R. 111 (Burling, J. C. C. 1946). We must assume that the plaintiff, on his motion for a new trial, urged that the verdict was of this character. By plain principles of estoppel he is forbidden now to take any other position. Since he sought and obtained a new trial on the theory that the damages were inadequate, on this theory must he stand to the end. Lindeman-Chevrolet, Inc. v. Reliable Woodworking Co., 4 N. J. Misc. R. 52; 103 N. J. Law 198 (E. & A. 1926). See also 5 C. J. S.., Appeal and Error, § 1506, p. 195. It is true that defendant, at the first trial, presented testimony minimizing plaintiff’s injuries, and I take for granted that -on the motion for a new trial, he vigorously-argued that the verdict was large enough. But his contention was not adopted by the court, while plaintiff’s became the law of the case (21 C. J. S. Courts, § 195, p. 332), and therefore defendant is now at liberty to make his opponent’s former contention a basis of his argument. '

On this appeal, in my opinion, the parties and this court as well, must proceed on the assumption that the verdict at the first trial was so small as to indicate clearly that the verdict in respect to damages was the result of mistake or partiality. We ought shut our minds to any other interpretation of the evidence.

Defendant’s liability was not at all clear. As plaintiff was entering the rear, right-hand door of an automobile, the door was slammed on his hand, badly injuring it. It is probable that either his friend Domanowski, or the defendant Lazar, was responsible, but plaintiff apparently did not know which one. He merely testified that they were both on the sidewalk near the door, when the door was slammed. The testimony of Doman owski and Lazar was even vaguer. Domanowski thought he got into his seat (front, right-hand seat) while Esposito, the plaintiff, was still outside with Lazar. He heard Esposito cry out with pain. “I turned around and I laughed. I seen his hand go up in a balloon. I turned around and I seen Mike Lazar at the wheel.” Asked bluntly whether it was he, Domanowski, who closed the door on Esposito’s hand, he replied, “I don’t remember closing the door.” Lazar testified that he opened both doors on the right side of the car, and then went around the front of the car. He heard Esposito scream. “Did you close the door on his hand? No, I can’t remember closing the door on his hand. I can’t remember.”

The case, as it went to the jury, presented this situation: Plaintiff had been seriously injured but whether or not defendant was liable was a question of much doubt. The jury found him liable but awarded damages in an-inadequate sum. It is reasonably inferable that the verdict was a compromise; that doubts of defendant’s liability were offset by a reduction of the amount of damages. A verdict resulting from such a compromise is wholly invalid. The granting of a new trial as to damages only worked a grave injustice to the defendant for it saddled him with the compromise debits while taking from him the credits. It was error for the trial court so to limit the new trial. DePeole v. Passaic City Steam Laundry, 5 N. J. Misc. R. 687 (Sup. Ct. 1927); Sussman v. Yellow Taxi Cab Co., 7 N. J. Misc. R. 325 (Sup. Ct. 1929); Juliano v. Abeles, 114 N. J. Law 510 (Sup. Ct. 1935); Stalter v. Schuyler, 135 N. J. Law 228 (Sup. Ct. 1947).

In my opinion, the judgment should be reversed.  