The opinion of the court was delivered by: BRODERICK
Presently before the Court is the plaintiff's motion to set aside the verdict and judgment and to enter judgment against the defendant Hartford Life and Accident Insurance Company (Hartford). Also, before the Court are the motions of the defendants Universal Insurance Service, Inc. (Universal), North Jersey Insurance Agency, Inc. (North Jersey) and Vincent Citarelli for a judgment notwithstanding the verdict or a new trial. Plaintiff alleges that the Court erred when it instructed the jury that its answers to the interrogatories were inconsistent and ordered them to continue their deliberations, after which the jury returned its verdict. The defendants Universal, North Jersey and Mr. Citarelli likewise contend that the Court's failure to accept the jury's first answers was error. In addition, these defendants contend that there was insufficient evidence to support the judgment entered pursuant to the jury's verdict or that the verdict was at least against the weight of the evidence. Plaintiff has also moved for a new trial as to damages contending that the jury's award is against the weight of the evidence. We have determined that for the reasons stated herein, we must deny these post-trial motions.
The following facts, viewed in a light most favorable to the plaintiff, were produced at trial. The plaintiff, University Marketing and Consulting, Inc. (University Marketing) is a Pennsylvania corporation which was in the business of producing "campus calendars" for distribution on college campuses throughout the United States.
The campus calendar set forth the dates of certain scheduled activities for a particular college and was designed to be used on a student's desk as a blotter. The plaintiff derived its income from the sale of advertising space on the campus calendar, which calendar would then be distributed to college students when they registered for class at the beginning of a semester. Hartford is a Connecticut corporation which sells casualty, health and life insurance. North Jersey was a representative for Hartford authorized to write casualty insurance. North Jersey was also a representative for other insurance companies. Universal was a corporation which was engaged in the mass merchandising of insurance, while defendants Vincent Citarelli and John Delli Santi were principals and officers in both North Jersey and Universal.
On June 12, 1972, Wasburn Oberwager, a vice president of University Marketing, met with Mr. Citarelli,
Mr. Delli Santi
and Mr. Donald Evans in the office of Albert Hegyi, a business associate of Mr. Oberwager, at 342 Madison Avenue in New York City. (N.T. 1-24). The meeting was arranged by Mr. Hegyi who suggested to Mr. Evans, a commission salesman for Universal and North Jersey (N.T. 2-199 to 2-201, 2-208, 2-240), that the campus calendar might be a good medium for the mass merchandising of insurance. (N.T. 4-269). Mr. Citarelli told Mr. Oberwager that he represented Hartford in the mass merchandising of insurance. (N.T. 2-154). At the meeting, Mr. Citarelli, Mr. Delli Santi and Mr. Evans reviewed the operations of their companies and told Mr. Oberwager that college students might be an appropriate target for the mass marketing of insurance. (N.T. 1-26). Mr. Citarelli, who did most of the talking at the meeting, stated that they (Mr. Citarelli, Mr. Delli Santi, Universal and North Jersey)
represented Hartford and several other insurance companies. (N.T. 1-27). Mr. Oberwager presented the campus calendar to the North Jersey defendants and discussed with them the amounts of advertising in the campus calendar which could be purchased and the cost thereof. (N.T. 1-27, 1-28). Mr. Citarelli showed Mr. Oberwager several Hartford brochures and a copy of a letter concerning the mass merchandising of insurance with Eastern Airlines. (N.T. 1-29, 1-30). Mr. Oberwager discussed with Mr. Citarelli, Mr. Delli Santi and Mr. Evans the tight deadline which would have to be met in order for them to secure advertising space in the 1972 Fall calendar. (N.T. 1-31). Mr. Oberwager left a sample calendar and rate card together with the mechanical requirements for the calendar with Mr. Citarelli, Mr. Delli Santi and Mr. Evans. He also left a blank copy of the plaintiff's standard contract. (N.T. 1-32). At the conclusion of the June 12, 1972 meeting, Mr. Citarelli told Mr. Oberwager that he thought Hartford would be interested in the program, that he was very interested and planned to participate, and that the details of participation in the program should be worked out with Mr. Evans. (N.T. 1-35). Mr. Evans then gave Mr. Oberwager his business card which described him as a representative of Universal. (N.T. 1-34, 2-102).
After the June 12, 1972 meeting, Mr. Evans, at the request of Mr. Delli Santi, delivered the copy of the campus calendar to Mr. Glandorf, the assistant director of sales for Hartford. (N.T. 212). On June 13, 1972, after checking with the president of University Marketing, Mr. James Dunning, Mr. Oberwager telephoned Mr. Evans and informed him that the participation that they were considering in the campus calendar would cost $51,000.00. (N.T. 1-36, 1-37). On June 15, 1972, Mr. Oberwager received a telephone call from Mr. Evans who told Mr. Oberwager that Hartford was going to participate in the Fall 1972 campus calendar and that Hartford had approved both the amount of participation and the price. (N.T. 1-45). Mr. Oberwager testified that it was his understanding that the bill for $51,000.00 was to go to either North Jersey or Hartford, depending upon where Mr. Citarelli instructed University Marketing to send the bill. (N.T. 2-113). Mr. Oberwager told Mr. Evans that he would accept the oral commitment because the commitments for the fall calendar had to be made. (N.T. 1-45, 1-46). Following this conversation on June 15, 1972, University Marketing made a decision to order paper for future campus calendars. Mr. Oberwager also told Mr. Evans that he would like to get a written contract in the near future signed by either North Jersey or Hartford, and that in the event North Jersey signed the contract, he wanted Hartford to initial the contract or show some other kind of approval. (N.T. 1-46). Mr. Evans told Mr. Oberwager that a written contract would be sent shortly. On June 22, 1972, Mr. Evans telephoned Mr. Oberwager and told him that Hartford was cancelling its participation in the Fall 1972 campus calendar but that Firemen's Insurance Company (Firemen's) would take Hartford's place for $51,000.00. (N.T. 1-48). Mr. Oberwager said that such a change was fine with University Marketing and sent a letter to Mr. Evans on that same date confirming the change in participants from Hartford to Firemen's. However, on July 10, 1972, Mr. Evans telephoned Mr. Oberwager and told him that Hartford would participate in the campus calendar. (N.T. 2-72, 2-177). To confirm this conversation, Mr. Oberwager sent Mr. Evans a letter on July 10, 1972 stating that the parties were returning to their original contract with Hartford participating in the campus calendar. (N.T. 2-720, 4-163). Also, on July 10, 1972, University Marketing sent their printer, I. S. Berlin Co. in Chicago, Illinois, a list of all the advertisers who would participate in the Fall 1972 campus calendar, which list included Hartford. (N.T. 4-198).
On July 13, 1972, Mr. Citarelli had a telephone conversation with Mr. Dunning, the president of University Marketing. Also participating in the telephone call were Mr. Delli Santi and Mr. Eick, who was introduced on the telephone to Mr. Dunning as a representative of Hartford. (N.T. 4-161). Mr. Dunning testified that the purpose of this conversation was to sew up the loose ends of getting copy of the advertisement to the printer, to get the financial arrangements finalized and to settle all the remaining problems with respect to the campus calendar. (N.T. 4-161, 4-163). In the course of this telephone conversation, Mr. Dunning was instructed to send a letter to Hartford as soon as possible briefly describing the campus calendar program. (N.T. 4-165). Mr. Dunning was told that this letter was for the purpose of completing the records of Hartford. (N.T. 4-165). On July 13, 1972, the same day as the telephone conversation between Mr. Dunning, Mr. Eick, Mr. Citarelli and Mr. Delli Santi, Mr. Dunning and Mr. Oberwager sent a letter to Mr. John Glandorf, the Assistant Director of Sales of Hartford, as requested, which letter outlined generally the campus calendar program. (N.T. 2-57). This letter reads as follows:
I am writing you at the request of Mr. Vince Citarelli concerning UMC's "Campus Calendar" program and Hartford's participation.
Enclosed are copies of the Spring (1972) edition of "Campus Calendar", a brief review of the program, and appropriate Rate Cards.
This Fall, 1,300,000 calendars will be distributed on over one hundred campuses throughout the United States. Calendars are given free to students when they arrive on campus, and many parents not only see the calendars, but return home with a copy. In addition, since participating campuses have a population of 2,500,000, each calendar's exposure is widespread. For this reason, advertising effectiveness and response to offers on calendars back covers has been excellent, even as high as twenty-five percent for some offers.
I hope the above information is satisfactory. If you have any questions do not hesitate to call. Otherwise, I look forward to a long and mutually profitable relationship.
Yours sincerely, James D. Dunning, Jr., President.
After the July 13, 1972 telephone conversation, Mr. Oberwager received a telephone call from Mr. Citarelli during which the billing for the advertising in the campus calendar was discussed. (N.T. 2-41, 2-171). On July 21, 1972, Mr. Oberwager and Mr. Dunning placed a telephone call to Hartford and spoke with Mr. Glandorf. (N.T. 2-73, 4-170). Mr. Glandorf was told by Mr. Dunning that University Marketing needed the copy of the advertisement that they were going to place in the campus calendar immediately because the production of the calendar could not be delayed any longer. (N.T. 2-74, 4-171). Mr. Glandorf stated that he was not going to send any copy, that he was aware that there had been discussions between University Marketing and North Jersey, that he felt there had been no commitment on behalf of Hartford, and that Hartford would not pay for the advertisement. (N.T. 2-74, 2-191, 4-171, 4-201). The Fall 1972 campus calendar was published without any advertising appearing on behalf of Hartford.
The evidence also showed that neither North Jersey, Universal, Mr. Citarelli or Mr. Delli Santi ever intended to pay for the Hartford advertisement in the campus calendar. (N.T. 2-223 to 2-225). Mr. Glandorf testified that Hartford never agreed to nor intended to pay for the campus calendar advertising program. (N.T. 3-28, 3-33, 3-35, 3-36, 3-51). However, Mr. Citarelli testified that he discussed with Mr. Glandorf his desire that Hartford pay for the campus calendar although no one from Hartford ever told Mr. Citarelli that Hartford would pay for advertising in the campus calendar. (N.T. 4-42, 4-48). Mr. Glandorf testified that Hartford did give consideration as to whether they would permit North Jersey or their representatives to use the Hartford name and logo (stag). (N.T. 3-22). Furthermore, Mr. Glandorf of Hartford told Mr. Citarelli that before Hartford would allow its name and logo to be used in connection with any advertising, approval of the copy of the advertisement to be used had to be obtained. (N.T. 3-37, 3-43). Indeed, on July 17, 1972, Mr. Glandorf sent a letter to Mr. Citarelli in which he stated (1) that Hartford would have to approve any advertising to be used in the campus calendar before its name and logo could be used; (2) that Hartford would not finance any part of the campus calendar program; and (3) that University Marketing should be made aware of the fact that the use of Hartford's name and logo in connection with the advertisement did not imply any financial responsibility on the part of Hartford. (N.T. 3-48).
Mr. Glandorf did not ascertain whether Mr. Citarelli followed his instruction to make it clear that Hartford would not be financially responsible for the advertisement. (N.T. 3-54, 3-55).
At the close of the plaintiff's case, all defendants moved for a directed verdict pursuant to Rule 50 of the Federal Rules of Civil Procedure. After extensive oral argument, the Court denied the motions for a directed verdict. (N.T. 5-2, 5-7). The Court did state that it was troubled as to the sufficiency of the evidence in connection with Hartford but had determined that the matter should go to the jury for its initial determination. (N.T. 5-58). The defendants offered no evidence. The Court made a determination that interrogatories should be submitted to the jury covering the issues that they would be required to resolve. There was no objection to the submission to the jury of interrogatories nor to the form of the interrogatories submitted. The following interrogatories were submitted to the jury during the charge of the Court:
1. Do you find from a preponderance of the evidence that there was a binding contract between the plaintiff and the defendant, Hartford, for advertising space in the campus calendar?
2. Do you find from a preponderance of the evidence that the defendant, Universal Insurance Service, Inc., made and breached an implied warranty that it had authority to bind Hartford for advertising space in the campus calendar?
3. Do you find from a preponderance of the evidence that the defendant, North Jersey Insurance Agency, Inc., made and breached an implied warranty that it had authority to bind Hartford for advertising space in the campus calendar?
4. Do you find from a preponderance of the evidence that the defendant, Universal Insurance Service, Inc., tortiously misrepresented its authority to bind Hartford ...