Burdge v. Retail Dep't Stores Of America Inc.

• Decision Date: 29 April 1943
• Docket Number: No. 26.,26.
• Citation: 31 A.2d 778,130 N.J.L. 81
• Parties: BURDGE v. RETAIL DEPARTMENT STORES OF AMERICA, Inc., et al.
• Court: New Jersey Supreme Court

130 N.J.L. 81

31 A.2d 778

BURDGE

v.RETAIL DEPARTMENT STORES OF AMERICA, Inc., et al.

No. 26.

Court of Errors and Appeals of New Jersey.

April 29, 1943.

Appeal from Supreme Court.

Action by Catherine Burdge against the Retail Department Stores of America, Inc., and another for personal injuries. From a judgment of the Supreme Court, 129 N.J.L. 228, 29 A.2d 139, reversing a judgment of nonsuit and allowing venire de novo, defendants appeal.

Affirmed.

Declarations are admissible, as part of the res gestae, only when they are concomitant with the main fact under consideration, and are so connected with it as to illustrate its character.

Wilbur A. Stevens and A. William Wann, both of Newark, for defendants-appellants.

Parsons, Labrecque & Borden, of Red Bank, for plaintiff-respondent.

DONGES, Justice.

We concur in the conclusion of the Supreme Court that the judgment of non-suit be reversed and for the reasons expressed in the opinion of Chief Justice Brogan for that court. 129 N.J.L. 228, 29 A.2d 139.

We deem it desirable, however, to deal with the trial court's ruling in refusing to permit testimony by a witness of a statement made, following the accident, by one of defendant's sales employees, as part of the res gestae.

It appeared from the testimony of the witness that the plaintiff had fallen; that as witness turned, after hearing ‘this thump’, and ‘a second or two after’ the completion of the accident, the ‘salesgirl’ made the remark which was sought to be put in evidence.

The test as to admissibility of such testimony has been laid down in cases like Blackman v. West Jersey & Seashore Railway Co., 68 N.J.L. 1, 52 A. 370, and Thompson v. Giant Tiger Corp., 118 N.J.L. 10, 189 A. 649. In the Blackman case Chief Justice Gummere, speaking for the Supreme Court, said: ‘The rule with relation to the admission of declarations upon this ground is that where the declaration is concomitant with the main fact under consideration, and is so connected with it as to illustrate its character, it may be proved as a part of the res gestae; but, where it is merely narrative of a past occurrence, it cannot be received as proof of the character of that occurrence. Greenl. Ev. § 108; Castner v. Sliker, 33 N.J.L. 95, 97. Tested by this rule, we think the question should have been excluded. If the words attributed to the conductor had been exclamatory, and coincident with the happening of the accident, they would undoubtedly have been illustrative of...