Opinion
Argued October 22, 1937 —
Decided January 26, 1938.
In the trial of a civil suit, a material point was the mental attitude of decedent by whose administratrix the suit was brought. Held, on motion to direct, that determination of this fact was for the jury, and not to be imputed by the trial court.
On appeal from the Supreme Court.
For the plaintiff-respondent, Abraham M. Herman.
For the defendant-appellant, Augustus C. Studer, Jr., Verling C. Enteman and McCarter English.
The appeal is by defendant from a judgment for the plaintiff entered upon a directed verdict in the Essex Circuit. The case had earlier been before us on plaintiff's appeal from judgment on a nonsuit. The opinion of this court thereon is reported in 118 N.J.L. at p. 149, and the nature of the cause may be gathered therefrom. Proofs at the second trial were submitted by both plaintiff and defendant and were of the same general character as at the first although amplified and in somewhat greater detail. The trial court, on the motion to direct, imputed to Alfred White a mental attitude which we think was not necessarily that which a jury would have found. The determination of the fact was not for the court. Our conclusion is that the case was again one for the jury.
The judgment is reversed. The record will be remitted for a retrial.
For affirmance — None. For reversal — THE CHANCELLOR, CHIEF JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 13.