Cestero v. Ferrara

• Decision Date: 22 February 1971
• Citation: 57 N.J. 497,273 A.2d 761
• Parties: Julio CESTERO, individually and per quod, Plaintiff-Appellant, and Celia Cestero, etc., et al., Plaintiffs, v. Jennie FERRARA, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 497

57 N.J. 497

273 A.2d 761

Julio CESTERO, individually and per quod, Plaintiff-Appellant, and Celia Cestero, etc., et al., Plaintiffs, v. Jennie FERRARA, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Jan. 12, 1971.

Decided Feb. 22, 1971.

Vincent D. Enright, Jr., Bloomfield, for appellant (Harth & Enright, Bloomfield, attorneys).

Adrian I. Karp. Newark, for respondent (Van Riper, Belmont & Villanueva, Newark, attorneys).

The opinion of the Court was delivered by

FRANCIS, J.

This action arises out of an automobile collision that occurred in Fairfield, N.J. on December 12, 1966, at approximately 10:30 P.M. at a highway intersection where the movement of vehicles was controlled by traffic lights. Plaintiff Julio Cestero, the driver of one car, and members of his family who were passengers in his car sued defendant Jennie Ferrara, the driver of the other car, to recover compensation on account of property damage, personal injuries and expenses suffered by them in the accident. Defendant Jennie Ferrara counterclaimed against Mr. Cestero seeking a recovery for personal injuries, medical expenses and other losses, including property damage to her car. After trial, the jury brought in a verdict of $60,000 in favor of defendant Ferrara against the plaintiff Cestero on the counterclaim and a verdict of no cause of action on the claims of the various plaintiffs. Following denial of a motion for a new trial, Cestero sought a review in the Appellate Division where the judgments entered on the verdicts were affirmed. Cestero v. Ferrara, 110 N.J.Super. 264, 265 A.2d 387 (App.Div.1970). We granted plaintiff Cestero's petition for certification. 56 N.J. 476, 267 A.2d 58 (1970).

A number of grounds for reversal were raised in the Appellate Division. They were disposed of adversely to Cestero in the opinion cited above, and although we agree with the affirmance, we find it advisable to deal somewhat differently with an evidence problem which constituted a major basis for the appeal.

The liability issue in the case was a relatively simple one. As already noted, movement of motor vehicles at the intersection in question was controlled by traffic lights. Each driver claimed the light was green as his or her car entered the intersecting street. It seems obvious from the record that the verdict would go to the driver in whose favor the jury decided that basic issue.

The testimony of Mrs. Ferrara and Mr. Cestero was diametrically opposed. Each one claimed the favorable green light; each produced a so-called disinterested witness who agreed with the claim of the party who produced him. During the trial, the record of Mrs. Ferrara's hospitalization and treatment following the accident was received in evidence. Plaintiff objected to the portion thereof which set forth as part of the patient's history her statement as to cause of the accident. The objection claimed that the statement was self-serving and hearsay and should be excluded. The trial court disagreed and admitted the entire record. The criticized portions says:

'Pt. (patient) stopped for red light, started up on green light and got hit * * *.'

Some further reference to the facts is necessary to facilitate discussion of the problem. As already noted, the accident took place at approximately 10:30 P.M. on December 12, 1966. Mrs. Ferrara was badly hurt and had to be transported by ambulance to the Mountainside Hospital in Montclair. She was carried into the emergency room at about 11:00 P.M. She testified that she did not remember anything after the accident until she was 'in the hospital.' Nor could she say how long she was in the hospital before she remembered 'anything.' In stating the 'first thing' she remembered she said 'Well, I opened my syes, and I looked up and * * * saw a doctor in front of me.' She started to say, 'I says to the doctor * * *,' but she was instructed not to tell that. She was in very bad pain when she saw the doctor.

On admission to the emergency room, it was obvious that Mrs. Ferrara was severely injured. The nurse's note says 'right leg deformed.' Apparently, Dr. Robert Greene, an orthopedist, was called immediately and arrived in a very short time, although the exact time of his appearance was not recorded. The inference is that he was the doctor she saw when she 'opened her eyes.' His handwritten notes on the chart record his first observations. He found a grossly deformed right femur with 'severe pain in any motion of the leg.' The leg was 'tender over the entire shaft' and there was 'gross shortening.' The patient had a small laceration of the scalp in the right temporal region.

When the doctor recorded the statement about the accident, he noted further that she was complaining of pain in the right thigh, right shoulder and head; also that she believed 'she was unconscious, but has no gross loss of memory other than this.' After x-rays of the patient's head, shoulder and right hip were taken and a gross neurological examination made, the doctor felt she could withstand the urgently necessary operation on her femur. Accordingly, she was removed to the operating room and the surgery performed. The hospital record notes that she was unable to sign the authorization for the surgery before being taken to the operating room.

It has long been the rule in New Jersey that the declarations of a patient as to his condition, symptoms and feelings made to his physician for the purpose of diagnosis and treatment are admissible in evidence as an exception to the hearsay rule. Bober v. Independent Plating Corp., 28 N.J. 160, 170, 145 A.2d 463 (1958). More recently the exception has been codified in our Rules of Evidence, Rule 63(12)(b). As Bober indicated, that departure from the hearsay rule has been approved because the law recognizes that such statements spring from natural reflexes and are made at a time when the desire for relief furnishes an impelling incentive for truth telling. But ordinarily statements as to the Cause of the symptoms or conditions are not removed from the hearsay objection because the same compelling motivation may not be present. Such statements may be the product of ulterior motives. Bober presents an example of the exceptional circumstances under which statements as to cause may be admitted. 28 N.J. at 172, 145 A.2d 463; see also Barrie v. Central R.R. Co. of New Jersey, 71 N.J.Super. 587, 596, 177 A.2d 568 (App.Div.), certif. den. 37 N.J. 87, 179 A.2d 416 (1962); New Jersey Rules of Evidence, Rules 63(12)(c), 63(32). The hearsay rule is ordinarily applicable to a patient's statements appearing in hospital records, even where the proof qualifies such records for admission in evidence as business records. State v. Gardner, 51 N.J. 444, 461--462, 242 A.2d 1 (1968); Pinter v. Parsekian, 92 N.J.Super. 392, 394--396, 223 A.2d 635 (App.Div.1966); New Jersey Rules of Evidence, Rule 63(13). When the records are otherwise admissible, the usual practice should be excision of the objectionable hearsay, and not exclusion of the entire record.

In the present case, even though Mrs. Ferrara's statement as to the manner in which the automobile collision occurred does not appear to have been necessary for purposes of medical treatment, it qualifies for admission under another well recognized exception to the prohibition against hearsay evidence.

Statements and declarations, although self-serving in character, are admissible when they constitute part of the Res gestae. In the early days of the common law, spontaneous statements, declarations or ejaculations which were made by a person involved in an accident so contemporaneously or concomitantly with the mishap as to explain or characterize it, were treated as part of the event itself and therefore evidential. McCormick, Evidence § 274, p. 585 (1954). But in more recent times the Res gestae concept has been considerably broadened and the requirement for strict contemporaneity has been modified. Now evidence of declarations made under the immediate influence of the principal transaction or occurrence are admissible. They need not be concomitant or coincident with the exciting stimulus; they may be subsequent providing that in the light of all the circumstances it may be said reasonably that the exciting influence had not lost its sway or had not been dissipated in the interval.

Some discretion must be vested in the trial judge with respect to the propriety of receiving in evidence post-event declarations. It must be remembered that they derive their basic credibility not from the veracity of the witness but rather...