Brown v. Mortimer

• Decision Date: 18 April 1968
• Docket Number: No. A--860,A--860
• Citation: 100 N.J.Super. 395,242 A.2d 36
• Parties: Frank BROWN, Plaintiff-Respondent, v. Florence MORTIMER and Sherry Schultz Van Dornick, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 395

100 N.J.Super. 395

242 A.2d 36

Frank BROWN, Plaintiff-Respondent, v. Florence MORTIMER and Sherry Schultz Van Dornick Defendants-Appellants.

No. A--860.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 6, 1967.

Decided April 18, 1968.

Robert W. Criscuolo, Mount Holly, for appellant, Sherry Schultz Van Dornick (Robert J. Partlow, Mount Holly, on the brief, Parker, McCay & Criscuolo, Mount Holly, attorneys).

George Y. Schoch, Trenton, for appellant, Florence Mortimer.

Sidney P. McCord, Jr., Haddonfield, for respondent (McCord, Farrell, Eynon & Munyon, Haddonfield, attorneys).

Before Judges CONFORD, COLLESTER and LABRECQUE.

The opinion of the court was delivered by

COLLESTER, J.A.D.

This is an appeal from a judgment entered following a jury verdict awarding plaintiff Frank Brown damages of $10,000 against defendant Sherry Van Dornick for personal injuries sustained in this automobile negligence action and a finding of no cause for action on the counterclaim of defendants Sherry Van Dornick and Florence Mortimer. Defendants' motion for a new trial was denied by the trial court.

The litigation resulted from an automobile collision which occurred at about 5:20 P.M. on Sunday, May 3, 1964, at an intersection of traffic lanes in the parking lot of Kind's Department Store in Edgewater Park Township. The pertinent facts are as follows.

Plaintiff testified that having completed his shopping in the store, he drove his Volkswagen bus, in which his wife and child were passengers, along a traffic lane in the parking lot which ran parallel with Route 130. He intended to go to a road which led from the store to Cooper Street. He said that as he approached an intersecting traffic lane in the lot which extended from the store towards Route 130 he made observations to his left and saw no car approaching. He looked to his right and saw a car some distance away coming from Route 130. He testified that he then drove slowly into the intersection where his automobile was struck on the left side, near the driver's seat, by a motor vehicle driven by defendant Sherry Van Dornick (then Sherry Schultz). As a result of the accident plaintiff sustained injuries.

Chief Henry Van Brunt of the Edgewater Park Police Department testified that Lieutenant Wagner, who had investigated the accident, was unable to testify because he was serving with the armed forces in Vietnam. (It is undisputed that Lieutenant Wagner arrived at the scene of the accident shortly after it occurred and before the injured persons were hospitalized.) Chief Van Brunt testified that the lieutenant prepared a police report which had been filed in his office. Defendants objected to Van Brunt's testifying because his name had not been given in answers to interrogatories as a person who had relevant knowledge of the accident. The court ruled that the witness could testify as the custodian of the report.

The chief thereupon identified the report which contained a diagram showing the location of the cars and skidmarks at the scene of the accident. It showed skidmarks leading up to the rear of defendants' car 14 to 17 in length and ending in scuffmarks to the left in the intersecting lane 3 to 4 in length. The chief further testified that it was the usual procedure for an investigating officer to secure the information necessary to prepare a report on a standard form issued by the Division of Motor Vehicles, including a diagram of the scene of the accident, and that such procedure is followed whether the accident occurred on either the public highway or private property.

The trial court, over defendants' objections held that the police report was admissible in evidence under section 35 of the Business Records As Evidence Act, N.J.S. 2A:82--34 et seq., N.J.S.A. In view of the ruling defendants withdrew an earlier objection they had made to the testimony of John Shedosky, a police photographer, and the admission of photographs he had taken, which objection had been sustained by the trial court.

Shedosky testified that at Lieutenant Wagner's direction he met the lieutenant at the parking lot at about 6:30 P.M. following the accident. He said he took photographs of the skidmarks and scuffmarks and assisted Wagner in measuring them. He also took photographs of the damaged automobiles which had been towed to a service station.

Defendants' version of the accident contradicted that given by plaintiff. Mrs. Van Dornick testified that she was operating an automobile owned by her mother, Florence Mortimer, in which her two children and Mrs. Mortimer were passengers. She said that having completed shopping in the store she drove the car in a parking lot traffic lane headed towards Route 130 at a speed of about 5 m.p.h. When she reached the intersecting lane she stopped her car. She looked to her left and right and saw no cars approaching. She testified she then drove four feet into the intersecting lane and again stopped when she saw plaintiff's car approaching on her right side. She said that after her car was stopped it was struck by plaintiff's motor vehicle. Mrs. Mortimer's testimony substantially corroborated that given by her daughter. She said she observed skidmarks on the lane where her car was pushed sideways but saw no other marks.

The photographs taken by Shedosky showed damage to the left side near the front of plaintiff's Volkswagen and to the grill, hood and right front fender of defendants' car.

Defendants raise three points: (1) the court erred in admitting the police report in evidence; (2) the court erred in permitting witnesses to testify who were not named as prospective witnesses in plaintiff's answers to interrogatories, and (3) the verdict was contrary to the weight of the evidence.

I

We deal first with defendants' second point--that the court erred in permitting Chief Van Brunt and Officer Shedosky (the police photographer) to testify although their names were not listed in an answer to an interrogatory requesting the names of all persons who had relevant knowledge of the accident.

It is well settled that parties to litigation may through discovery proceedings elicit from their adversaries the names of witnesses proposed to be used at the trial, R.R. 4:16--2 and 4:23--9, and that failure to provide the same may result in sanctions imposed by the court excluding their testimony. R.R. 4:27--2(b)(2); Burke v. Central Railroad Co. of N.J., 42 N.J.Super. 387, 394--95, 126 A.2d 903 (App.Div.1956). The application of sanctions is consigned to the sound discretion of the court, subject only to the rule that the sanction visited upon the party must be just and reasonable. Our cases recognize three factors which, if disclosed by the circumstances of the particular case, strongly urge the trial court, in the exercise of his discretion, to suspend the imposition of sanctions, namely, (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence. Branch v. Emery Transportation Co., 53 N.J.Super. 367, 375--376, 147 A.2d 556 (App.Div.1958).

As to the first factor mentioned in Branch, defendants concede that there was no intention on the part of plaintiff to mislead them. We are satisfied that defendants were neither surprised nor prejudiced when Chief Van Brunt was called upon to testify as the custodian of the police report. They knew of the existence of the report and had previously been advised that Lieutenant Wagner, who had prepared it, would be called as a witness. Since the lieutenant was with the armed services in Vietnam and unavailable we conclude there was no mistaken exercise of discretion by the court in permitting Van Brunt to testify as the custodian of the record. Moreover, Chief Van Brunt's testimony concerning established police procedures for the preparation and filing of an accident report was clearly not barred by plaintiff's failure to list him as a witness who had Relevant knowledge of the accident.

Defendants' similar argument with regard to the testimony of Officer Shedosky and the admission of photographs taken by him is without merit since at trial they withdrew their previously sustained objections to such evidence.

II

We consider next defendants' contention that the police report should not have been admitted in evidence under the provision of the Uniform Business Records As Evidence Act, N.J.S. 2A:82--34 et seq., N.J.S.A., Section 35 of the statute provides 'A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.'

We note parenthetically that the statute, which was in effect when the case was tried, was superseded on September 11, 1967 when the Rules of Evidence adopted under the Evidence Act of 1960 became effective. (See N.J.S. 2A:84A--40, N.J.S.A. and the footnote to Rule 63(13) of the Rules of Evidence.) However, there is no substantial difference between the underlying policy of Rule 63(13) concerning the admission of business records and section 35 of the statute which the rule replaced. ¹

The basic theory of the statute was set forth in Mahoney v. Minsky, 39 N.J. 208, 188 A.2d 161 (1963) where the court stated:

'(R)ecords which are properly shown to have been kept as required normally possess a circumstantial probability of trustworthiness, and therefore ought to be received in evidence unless, the trial court, after examining them and hearing the manner of their preparation explained, entertains serious doubt as to whether they are dependable or worthy of confidence. The last clause of the...