Biruk v. Wilson

• Citation: 234 A.2d 225,50 N.J. 253
• Decision Date: 09 October 1967
• Docket Number: No. A--110,A--110
• Parties: Dennis R. BIRUK, an infant, et al., Plaintiffs-Appellants, v. William WILSON et al., Defendants-Respondents.
• Court: United States State Supreme Court (New Jersey)

Page 253

50 N.J. 253

234 A.2d 225

Dennis R. BIRUK, an infant, et al., Plaintiffs-Appellants, v. William WILSON et al., Defendants-Respondents.

No. A--110.

Supreme Court of New Jersey.

Argued June 6 and 7, 1967.

Decided Oct. 9, 1967.

Nicholas Conover English, Newark, for appellants Dennis Biruk and George Biruk (McCarter & English, Newark, attorneys, Joseph E. Irenas, Elizabeth, on the brief).

Sam Weiss, Newark, for respondents Janice Mayercik and others (Henry C. Ruttiger, Metuchen, attorney).

Thomas B. Mannion, New Brunswick, for respondents Dorothy Meier and others (Lynch, Murphy, Mannion & Lynch, New Brunswick, attorneys).

Solomon Lubow, Jersey City, for respondent Steven Warchol (Chazin & Chazin, Jersey City, attorneys).

The opinion of the court was delivered by

HANEMAN, J.

This case arises out of a two car automobile accident which occurred in Highland Park, N.J. at about 9:30 P.M. on August 13, 1963. William Wilson, a minor, operating the car of his uncle, Henry Stone, was travelling east on Route 27, a four-lane road divided by a double white line, accompanied by Dorothy Meier and Janice Mayercik, also minors. At some point west of the intersection of Route 27 and Eighth Avenue he applied his brakes, causing the car to skid across the double center line into the left-hand westbound lane. According to Wilson he did so because of a car stopping in the road some distance ahead of him. The result was a collision with a car driven by another minor, Dennis Biruk, and owned by his father, travelling west in the left lane. Riding with Biruk as a passenger was Steven Warchol. The two girls, Warchol and Biruk suffered considerable injuries. Janice Mayercik, her father, Dorothy Meier, her father and mother, and Steven Warchol brought suit against Wilson, Stone, Dennis Biruk and his father. The Biruks brought an action against Wilson and Stone. The cases were consolidated and the jury determined that William Wilson and Dennis Biruk were negligent and awarded damages as follows: Janice Mayercik, $30,000; her father, $5,188; Dorothy Meier, $18,500; her parents, $1,279.55; and Steven Warchol, $15,000.

The Biruks appealed from the judgments in their suits against Wilson and Stone and on the actions undertaken by the Mayerciks, Meiers and Warchol against them, to the Appellate Division which affirmed in an unreported Per curiam opinion. Wilson, who was uninsured and represented by the Unsatisfied Claim and Judgment Fund at trial did not appeal nor contest Biruks' appeal before the Appellate Division and has not contested the action before this Court. We granted Biruks' petition for certification. 48 N.J. 120, 233 A.2d 497 (1966).

In substance, Biruks' appeal urges that: (1) the jury's finding of liability was contrary to the weight of the evidence; (2) the verdicts in favor of Janice Mayercik and Dorothy Meier and their parents were excessive; (3) they were prejudiced by the trial tactics of opposing attorneys; and (4) there was error in the charge as given and in the omissions to give certain requested charges.

I

Dennis Biruk testified at the trial that the Wilson car skidded suddenly into his lane almost immediately in front of him. There was no warning to alert him to the danger. Steven Warchol, however, stated that he saw the car skidding in the westbound lane about 150 feet ahead and shouted a warning to Dennis Biruk which went unheeded. William Wilson testified that when he first started skidding he observed a car approaching in the westbound lane about 100 feet away. In the suits against the Biruks, the plaintiffs' theory of liability was that Dennis Biruk had ample warning of the presence of Wilson's car in his lane and that he should have taken some action to avoid the accident. In addition to the above cited testimony of Warchol, plaintiffs in the suits against the Biruks introduced evidence as to the physical surroundings at the scene of the accident. They argued that had Dennis Biruk been acting with reasonable care there were numerous places where he could have steered his car to avoid the accident.

Upon examining the record we view the question of Dennis Biruk's negligence as a very close one. Nevertheless, we cannot sustain appellants' claim that the jury's finding of liability was contrary to the weight of the evidence.

II

We find no merit in the claim that the verdicts in favor of the girls and their parents were excessive.

III

We do find, however, that the tactics of the attorneys for Warchol and the Meiers should not have been permitted especially in the light of the factual complex surrounding the accident as testified to at the trial.

The testimony indicated that shortly prior to the accident Biruk and Warchol had stopped at a McDonald's Hamburger Drive-In on Route 27. While there Biruk met and briefly conversed with one Robert Jasper, a friend with whom he sometimes double dated. After a couple of minutes Jasper left, proceeding west on Route 27. Shortly thereafter, Biruk and Warchol also left and proceeded west. Biruk testified that the cars later stopped side by side at a traffic light about a mile up the road. Warchol did not remember seeing Jasper after he left McDonald's. When the light turned green Jasper accelerated faster and proceeded down the road.

In Biruk's deposition which was used by Warchol's attorney on cross-examination Biruk stated, 'He went first and he kept going away from us, pulling away from us'. Biruk was aware of the fact that Jasper remained up ahead because he could see the tail-lights of his car. At the time of the accident he estimated that Jasper was about 300 yards ahead of him.

Jasper's name was listed by Biruk in his answers to Interrogatories and he was available for questioning by all parties. Despite this the attorney for the Meiers stated the following in his summation:

"Now the mention of Mr. Warchol brings up the other name, the witness or not a witness, the man who wasn't here. Was it Robert Jasper? In any event, Mr. Jasper wasn't here. Now Mr. Lane (Biruks' attorney) rightly objected to Mr. Warchol saying what he did. But we'll never find out and Mr. Lane made the comment and he can make the comment that we have had an opportunity, Mr. Rose, Mr. Lubow, Mr. Ruttiger and myself, we had the opportunity to bring him in as well as Mr. Lane. But you must remember this, ladies and gentlemen, that from the testimony of Mr. Biruk, out of his own mouth, Mr. Jasper is his friend. We had a right to go to talk to him. But do you think a friend would talk to us if we put him on the stand? You know how the rules are. We are limited to questions, we are bound by them and he would be our witness. Did we know what he was going to say? You have a right to consider that. He was his friend and he didn't come in to testify for him. Now would his friend have come in and testify against him as to whether they were racing or some evidence in here whether they were trying to keep up with one another.

With that I'll leave it drop and let Mr. Lane comment on it if he will. But unfortunately, ladies and gentlemen, in that regard at least you did not hear the whole truth, the whole picture. Mr. Jasper wasn't here."

The suggestion that Jasper might have evidence of some importance was first made by Warchol's attorney during the course of the trial. In an argument on an objection, in the presence of the jury, he stated:

"I believe that especially where he has been named and his absence here, if there will be an absence, will be a matter of consideration for a court and jury. I think that nothing more but just what I have said just now, I think that raises a question in the minds of all of us, does this man Jasper know something about it, and especially, when I read this one answer there, which might indicate very well if not expressly."

Jasper was available for questioning by all parties. There is nothing in the record to indicate that he had any knowledge of any facts detrimental to Biruk's case. In fact, a statement which he gave to counsel for Biruk indicates that, if anything, his testimony might have aided Biruk's defense since he stated that Wilson's car was travelling at a speed which could have been shown to exceed the speed limit. In the light of Jasper's availability and the fact that there was no reasonable basis to believe that he had any information detrimental to Biruk's case we find that counsel's suggestions otherwise were unwarranted.

Even more unwarranted, however, was the suggestion by Warchol's attorney that the Biruk car was following or playing games with Jasper's car. This suggestion was made during the trial and was the first point raised by counsel in his summation. He stated:

'* * * At McDonald's they had something to eat and the attorney for Mr. Biruk asked Mr. Warchol how long were you separated from him when you went to get the milkshake or whatever it was, and my client said three minutes, and he...