Carter v. Public Service Coordinated Transport, A--459

• Decision Date: 08 November 1957
• Docket Number: No. A--459,A--459
• Citation: 136 A.2d 15,47 N.J.Super. 379
• Parties: Eugenia A. CARTER and John R. Carter, Plaintiffs-Respondents, v. PUBLIC SERVICE COORDINATED TRANSPORT, a corporation of the State of New Jersey, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 379

47 N.J.Super. 379

136 A.2d 15

Eugenia A. CARTER and John R. Carter, Plaintiffs-Respondents, v. PUBLIC SERVICE COORDINATED TRANSPORT, a corporation of the State of New Jersey, Defendant-Appellant.

No. A--459.

Superior Court of New Jersey Appellate Division.

Argued Oct. 7, 1957.

Decided Nov. 8, 1957.

Martin F. McKernan, Camden, argued the cause for plaintiffs-respondents (Raymond J. Osborn, Camden, attorney; Martin F. McKernan of counsel).

Louis F. Stein, Jr., Newark, argued the cause for defendant-appellant (Louis F. Stein, Jr., Newark, attorney and of counsel).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

This appeal is from a judgment entered in favor of the plaintiffs, Eugenia A. Carter and her husband, John R. Carter, pursuant to a jury verdict in the Superior Court, Law Division. A motion for involuntary dismissal at the conclusion of the plaintiffs' case and a motion for a new trial were both denied.

Eugenia A. Carter, in the mid-afternoon of March 15, 1956, was waiting at a posted bus stop to board defendant's bus to take her to her doctor. She observed two buses approaching; one was riding along the curb line and the 'other bus was passing it and cutting in front of it.' The bus that was coming along the curb stopped before it approached the bus station. The other bus, after cutting in front of the bus at the curb, went past the posted sign and up to the corner where it stopped in a position diagonal to the curb. Mrs. Carter testified that when the bus came to a stop, the door of the bus was 20 to 24 inches from the rounded curb and the rear of the bus about three feet from the curb. The testimony is conflicting as to the exact distance between the bus and the curb. She walked toward the bus, said she saw the operator, and that he saw and looked at her. She said that as she attempted to step onto the bus from the curb, she had her left foot on the step but 'the reach, stretch was too far for me and my foot came back from the step' and she fell. She said that her left foot slipped off the step, she lost her shoe, the upper portion of her body went forward into the bus, and she assumed a kneeling position so that just her feet were hanging out of the bus. When asked on direct examination, 'Were you able to get up?' the plaintiff replied, 'Eventually, I was because there wasn't anybody there to help me, and I had to get myself up.'

Her testimony on direct examination proceeded as follows:

'Q. What did the bus driver say to you when he got out? He said 'I knew you were pregnant.' He said that, 'and I thought you were going to have trouble when you went (sic)."

The defendant strenuously objected for the reason that what the witness said was narrative, and not part of the Res gestae, and the driver of the bus was not a party to the action. However, the trial judge overruled the objection and permitted the answer as part of the Res gestae. The bus driver testified that he saw Mrs. Carter walk toward the bus from where she had been standing near the posted bus sign, and denied he knew she was pregnant.

Both of the plaintiffs testified that her pregnancy was 'large,' and on the day of the incident she was wearing a loose-fitting winter coat with the lining removed. The same day, after the incident, a police officer was called to the plaintiffs' home to take her to a doctor, and he testified that her pregnancy 'was an obvious fact.' The baby born on April 6, 1956, was normal and healthy, and no cause of action is predicated in its behalf.

A statement, signed by Mrs. Carter, was prepared by an investigator of the defendant on the day following the accident, and stated that the step of the bus was six to eight inches from the curb. In explanation of the contradiction with her testimony on direct examination, the plaintiff stated that when questioned by the investigator she was confined to her bed under sedation, and that the distance had been suggested by the investigator, although she admitted signing the statement. The investigator on cross-examination testified that Mrs. Carter had told him the step of the bus was eight to ten inches from the curb. A police officer, who was on duty at the crossing intersection, stated that when the incident occurred he had his back to the bus. He said when he observed 'something wrong,' he went to the bus and saw the plaintiff 'leaning over in the bus.' He testified that the bus was stopped where the curb turns, only three inches from the curb, and that there was not room for her to stand between the bus and the curb. The bus driver testified that when the bus stopped the distance was 'possibly 7 inches' between the side of the bus and the curb.

The defendant's investigator was asked on cross-examination if he discussed with Mrs. Carter at the time he secured the statement 'whether or not she had felt her baby move since the accident.' The defendant moved for a mistrial, which was denied.

A passenger in the same bus, testifying for the defense, was asked on cross-examination if she was being paid to testify. The defendant moved for a mistrial which was denied and the trial judge permitted the question to be reframed. It was answered in the negative.

The defendant appeals from the jury verdict of $2,000 for the plaintiff and $500 for her husband, Per quod.

On the appeal, the defendant argues that the trial court erred in admitting into evidence testimony concerning the statement alleged to have been made by its driver concerning his knowledge or notice of the plaintiff's pregnant condition; the denial of its several motions for mistrial; the failure to grant a motion for involuntary dismissal at the conclusion of the plaintiffs' case, the charge of the court as it pertained particularly to the question of notice as to Mrs. Carter's pregnant condition, and excessive damages.

The important question on this appeal is the propriety of the ruling concerning the alleged statement of the bus driver that he knew the plaintiff was pregnant and she was going to have trouble when getting on the bus. The defendant argues that the alleged statement was narrative of a past event and, due to the lapse of time subsequent to the happening of the event, the declaration, if it was made, was not part of the Res gestae.

The defendant contends that since the bus driver was not a party to the suit, his statement was not binding on the defendant and was also inadmissible as hearsay.

The question raised upon the objection is thus seen to be twofold: (a) as a matter of agency, was the driver authorized to make the statement so as to bind his principal, the defendant; (b) if he was not so authorized, is the statement nevertheless admissible, as a matter of the law of evidence, as constituting part of the Res gestae of the accident? We shall consider each of these aspects of the objection in the order stated.

It has been frequently held in this state that a statement by an employee or agent imputing fault to himself or to the defendant-employer is not admissible in a tort suit against the principal unless the words can be regarded as spoken in the execution of the employment or agency, notwithstanding that they relate to the business of the employer or principal. Blackman v. West Jersey & Seashore R. Co., 68 N.J.L. 1, 3, 52 A. 370 (Sup.Ct.1902); Thompson v. Giant Tiger Corp., 118 N.J.L. 10, 15, 189 A. 649 (E. & A.1937); Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 145, 84 A.2d 281 (1951). Cf. Arenson v. Skouras Theatres Corp., 131 N.J.L. 303, 36 A.2d 761 (E. & A.1944). It may well be considered, as a matter of original analysis, that the problem of admissibility here is not one of agency, since the liability of the principal is vicarious, proceeding upon the basis of Respondeat superior. The direct inquiry is whether the driver was negligent. If he was, the defendant is liable because the driver was employed by it in driving the bus, entirely apart from any question of authority to make the disputed statement, a question which would correctly be deemed involved as a matter of agency if the defendant were being sought to be held contractually on the basis of a statement or conversation by the agent. Here the statement is material only as evidence of the driver's knowledge of the pregnancy of the plaintiff, because bearing upon his exercise of reasonable care in preparing for her boarding the bus. In such a situation, Rule 63(9) of the Uniform Rules of Evidence would render the statement admissible, since it Related to a matter within the scope of the agent's duty and was made while the driver was still employed as agent. See also American Law Institute, Model Code of Evidence, Rule 508(a), comment (b). In support of the proposal see McCormick 'Hearsay,'10 Rutgers L.Rev. 620, 625 (1956). See also the criticism of importing the Res gestae concept, in dealing with the agency aspect of the problem, in 6 Wigmore on Evidence (3rd ed. 1940) § 1766, p. 184 and 4 Ibid., § 1078, pp. 120, 121.

However, this court is controlled by the approach taken in decisions of our courts of last resort cited above. The question is, then, whether the statement can be said to have been made in the execution of the driver's agency. We think not. The statement was neither authorized directly nor necessary or pertinent in performing the driver's duty to assist the woman after the accident.

We consequently turn to the question as to whether the admission of the statement is supportable as part of the Res gestae of the accident (independent of any relationship to the scope of agency to make such a statement).

The rule of Res gestae has been frequently considered by our appellate courts. Vide, Robertson v. Hackensack Trust Co., 1 N.J. 304, 63 A.2d 515 (1949); Andriscak v. National Fireproofing Corp., 3 N.J. 466, 70 A.2d 750 (1950); Kelley v. Hicks, 9 N.J.Super. 266, 76 A.2d 23 (App.Div.1950); Riley v. Weigand, 18 N.J.Super. 66, 86 A.2d 698...