# Kulbacki v. Sobchinsky > Supreme Court of New Jersey · November 19, 1962 · 38 N.J. 435 URL: https://www.frixlaw.com/law-library/cases/9734778 ## Case - **Full name:** Frank Kulbacki, Administrator Ad Prosequendum of the Estate of Francis Kulbacki, Deceased, Plaintiff-Respondent, v. Richard Sobchinsky and Martin Guzior, T/A the Somerville Transfer Company, Defendants-Appellants - **Court:** Supreme Court of New Jersey - **Decided:** November 19, 1962 - **Citations:** 38 N.J. 435; 185 A.2d 835; 1962 N.J. LEXIS 186 - **Precedential status:** Published - **Opinion:** Concurrence by Haneman - **Judges:** Schettino, Haneman, Weintraub, Jacobs, Francis - **Cited by:** 69 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9734778 ## Opinion text Haneman, J. (concurring). I am in agreement with the majority opinion. However, that opinion in approving the test which the trial judge expressed that he had applied in considering the motion for a new trial has not fully delineated the proper guide and standard against which his stated mental processes should be measured. This, I conceive, requires further elucidation. Although Franklin Discount Co. v. Ford, 27 N. J. 473 (1958), clearly delineated the difference between a motion for a direction at the close of the trial and a motion for a new trial after a jury verdict, there still appears to remain some confusion as to the basic distinction between these two *455 motions and the meaning of “weigh the evidence” used in connection therewith. It haf been said that, upon a motion for a directed verdict, the trial court cannot weigh the evidence but must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. Melone v. Jersey Central Power and Light Co., 18 N. J. 163 (1955). In Franklin Discount Co. v. Ford, 27 N. J. 473, 487, it was said: “Where the judge, by the application of the reasoning processes of the mind to the evidence adduced in the ease, may properly conclude that fair-minded men cannot honestly differ as to the conclusions to be drawn from the proofs, the motion for judgment should be granted.” Thus it is seen that the words “weigh the evidence” are used in a very restricted sense. In effect, it is an untrue statement to say that the judge does not “weigh the evidence.” The function of applying his “reasoning processes of the mind to the evidence adduced” requires a weighing, i.e., evaluation, analysis, or sifting of the evidence, but in the light of the specific directive- guides and for a limited purpose. He must, in so doing, as noted, accept as true all the evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences therefrom in his favor. If upon performing this function the court determines that reasonable men might honestly disagree as to the essential facts, the motion must be denied and the matter be submitted to the jury. The prohibition against “weighing” concerns the usurpation of the constitutional jury function of deciding on whose behalf the evidence so adduced is inclined to favor. The significance of this word, therefore, is only that the judge may not evaluate the evidence as would a jury to ascertain in whose favor the evidence preponderates. It is therefore seen that a statement that there exists a complete restriction against “weighing” is inaccurate. *456 A motion for a new trial on the ground that the verdict is against the weight of the evidence, on the other hand, partakes of an entirely different nature. There can be ho doubt that such a motion constitutes, to some extent at least, an invasion into the constitutional province of the jury. But by the same token it does not interfere with that function. It serves a restraining 'and prophylactic purpose which is to prevent a miscarriage of justice. The court acts, therefore, as a check in order to make certain the jury does not abuse its powers. Such a motion should be granted only where to do otherwise would result in a miscarriage of justice shocking to the conscience of the court. In Colacurcio Contracting Corp. v. Weiss, 20 N. J. 258, 262, the court said: “The right to trial by jury secured by the Constitution does not immunize a jury verdict from nullification in any case where it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion. The rules of court expressly authorizing the upsetting of the verdict in such case; B. B. 4:61-1 (a) in the trial court and B. B. 1:5-3 (a) in the appellate courts, do not unconstitutionally invade this basic right. There is no constitutional protection of error so fundamental, Hager v. Weber, 7 N. J. 201 (1951). The constitutional provisión neither enlarges nor restricts the right to jury trial, but merely preserves it as it existed at common law at the time of the adoption of our original Constitution in 1776. Steiner v. Stein, 2 N. J. 367 (1949). An inquiry into the weight of the evidence, either in a civil or a criminal ease, governed by the cited standard is not in derogation of the common law right of trial by jury and therefore, as the Constitution secures no greater right, neither is such inquiry in derogation of the Constitution. “ * *” See also 6 Moore, Fed. Practice 3712 (1961). In 8 Ill. L. Rev. 287, 401 (1913) it was stated that “The whole of the reason underlying them [motions for directed verdict and new trial] always has been to give legal effect to the community’s hostility to the exercise of arbitrary power by the jury. As the substantive law, or the expression of the community’s sense of right, always has been against the exercise of arbitrary power by judges in the decision of questions of law within their province, so it always has been against the exercise of arbitrary power by the jury in *457 the decision of questions of fact within their province. * * * There can be no question the motion for a new trial * * * carried the judicial power into the pre-existing province of the jury. But this evil always has been thought less than the evil of arbitrary power in the jury, subject to no restraint or check.” In Hager v. Weber, 7 N. J. 201, 210 (1951), the court said: “The indubitable principle of the Kohl [Kohl v. State, 59 N. J. L. 445] and Knight [State v. Knight, 96 N. J. L. 461] cases is that the ‘finality’ inherent in the then constitutional courts did not render immune to appellate review a verdict that plainly transcended the province of the jury in that it was not ‘justly’ sustainable on the evidence. There was no constitutional protection of error so fundamental. The appellate tribunal cannot invade the constitutional office of the jury; it may not merely weigh the evidence where it is fairly susceptible of divergent inferences and substitute its own judgment for that of the jury. But, if the verdict be so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice, or partiality, it cannot serve to support the judgment, and appellate correction of the error is not an interference with the constitutional security of the inferior court or the attribute of finality on the facts inherent in its judgments or the constitutional right of trial by jury. As respects the appellate corrective process, there is no essential difference between a verdict that comes from misdirection and a verdict that constitutes a palpable perversion of the jury function. A verdict that rests upon testimony competent to sustain the inference implied in such a finding is ordinarily conclusive; e converso, it is not. Smith v. [P.]Lorillard Co., 67 N. J. L. 361 (Sup. Ct. 1902). The court may not set aside a verdict merely because, in its opinion, the jury upon the evidence might well have found otherwise. Knickerbocker Ice Co. v. Anderson, 31 N. J. L. 333 (Sup. Ct. 1865). This conception of the weight of the evidence governs the trial court as well as the appellate court; and it applies to civil and criminal causes. State v. Karpowitz, 98 N. J. L. 546 (E. & A. 1923) ; Boesch v. Kick, 97 N. J. L. 92 (Sup. Ct. 1922), affirmed 98 N. J. L. 183 (E. & A. 1922) ; Queen v. Jennings, 93 N. J. L. 353 (Sup. Ct. 1919) ; Floersch v. Donnell, 82 N. J. L. 357 (Sup. Ct. 1912) ; Juliano v. Abeles, 114 N. J. L. 510 (Sup. Ct. 1935).” In Mt. Adams & E. P. Inclined R. Co. v. Lowery, 74 F. 463, 476 (6 Cir., 1896), the court said: “* * * there is a difference between the legal discretion of the court to set aside a verdict as against the weight of evidence, and that *458 obligation which the court has to withdraw a case from the jury, or direct a verdict, for insufficiency of evidence. In the latter case it must be so insufficient in fact as to be insufficient in law; in the former case it is merely insufficient in fact, and it may be either insufficient in law, or may have more weight, and not enough to justify the court, in exercising the control which the law gives it to prevent unjust verdicts, to allow a verdict to stand. * * * We do not think, therefore, that it is a proper test of whether the court should direct a verdict, that the court, on weighing the evidence, would, upon motion, grant a new trial. A judge might, under some circumstances, grant one new trial and refuse a second, or grant a second and refuse a third. In passing upon such motions he is necessarily required to weigh the evidence, that he may determine whether the verdict was one which might reasonably have been reached. But, in passing upon a motion to direct a verdict, his functions are altogether different. In the latter case we think he cannot properly undertake to weigh the evidence. His duty is to take that view of the evidence most favorable to the party against whom it is moved to direct a verdict, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for the party having the onus.” The standard to be applied by our rules as stated in R. R. 4:61-1, delineates “miscarriage of justice” as follows: “On a motion for a new trial in an action tried before a jury, the trial judge shall not set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion.” As a consequence, the trial judge upon such a motion is obliged to “weigh the evidence,” untrammeled by the restrictions attendant upon a consideration of a motion for a direction. This, however, is for the sole purpose of ascertaining whether there is such a clear imbalance of believable evidence to sustain the verdict, as to convincingly demonstrate that the jury had perverted its duty to arrive at an impartially reasoned verdict. This conclusion may be attained when there is a total absence of any believable evidence to sustain the verdict or when the verdict can be vindicated only if bottomed upon patently false or unbelievable evidence. Then *459 the jury may be said to have been moved by mistake, partiality, prejudice, or passion which resulted in :a miscarriage of justice. When the court so finds, the motion should be granted. » In the matter sub judice, it is apparent that the trial judge was expressing the proper concept of the limits of his power on a motion for a new trial as against the weight of the evidence. In substance he was saying that he could and did weigh the evidence only to decide whether there was such an evidential imbalance and not to ascertain whether, in the face of evidence subject to divergent inferences, the jury had reached the same result which would have been attained by him. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9734778. Public record. Not legal advice.