Christie v. Petrullo

• Docket Number: No. 59.,59.
• Citation: 128 A. 853,101 N.J.L. 492
• Decision Date: 05 May 1925
• Court: New Jersey Supreme Court
• Parties: HELEN CHRISTIE, RESPONDENT, v. JOSEPH PETRULLO, APPELLANT

128 A. 853

CHRISTIE

v. PETRULLO.

No. 59.

Supreme Court of New Jersey.

May 8, 1925.

(Syllabus by the Court.)

Action by Helen Christie against Joseph Petrullo.Judgment for plaintiff, and defendant obtained rule to show cause.Rule discharged.

Argued October term, 1924, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

Harlan Besson, of Hoboken (O. J. Pellet, of Hoboken, of counsel), for plaintiff.

Joseph H. Gaudielle, of Hackensack, for defendant.

KATZENBACH, J.This case is before this court upon a rule to show cause allowed to the defendant, Joseph Petrullo.The action was tried at the Bergen circuit.The plaintiff, Helen Christie, instituted suit to recover damages for injuries which she claimed she had received by the negligent operation of the defendant's automobile when she was crossing Eighth avenue at Forty-Fourth street, in the city of New York, on May 21, 1920.The case was tried on January 23, 1924.At the trial the plaintiff identified the defendant as the operator of the car.This identification was also made by two witnesses for the plaintiff—Roehrbach and Natell.The defendant denied he was in New York on the day of the accident.The identity of the defendant was therefore an issue in the case, and was submitted to the jury which by its verdict for the plaintiff must have found that the defendant was in New York at the time of the accident, and was the operator of the car which struck the plaintiff.The plaintiff may have been aided in obtaining this verdict by the fact that a certificate issued by the motor vehicle department was introduced in evidence.It read as follows:

"I, William L. Dill, commissioner of motor vehicles of the state of New Jersey, do hereby certify that passenger registration No 112474 was issued to Joseph Petrullo, 385 Passaic street, Lodi, N. J., on a Chevrolet car, serial No. 21336, for the year 1920.Dated Jan. 22, 1924."

The evidence offered by the plaintiff tended to show that the registration number of the car which struck her was 112474 N. J.This certificate was admitted in evidence with the consent of the defendant's counsel, who desired in return to have admitted in evidence a certificate of J. Edward Martin, an agent of the motor vehicle department, to the effect that the license issued to Petrullo, the defendant, on January 12, 1920, was numbered 112475.The plaintiff's counsel consented to the admission of this certificate.The jury therefore had before it the contradictory certificates as to the license number of the defendant's car.

Six days after the trial the defendant presented to the trial judge a petition setting forth that since the trial he had located a person by the name of Ludwig V. Lauther, who admitted that he had been, on May 21, 1920, at the hour and place testified to by the plaintiff, in an automobile bearing the New Jersey license No. 112474.Lauther wrote out and swore to a statement of the occurrence which he delivered to the petitioner.Upon this petition the trial court allowed the rule, with leave to take affidavits, reserving to the defendant the exceptions taken at the trial.Under this rule depositions were taken before a Supreme Court Commissioner.Mr. Lauther testified to the facts mentioned.The defendant testified.A certificate signed by Mr. Dill, commissioner of motor vehicles, was offered.This certificate states that the registration number of Petrullo's car for 1920 was 112475, and of Lauther's car was 112474.The plaintiff and Roehrbach, who testified at the trial, again positively identified Petrullo as the driver of the car which struck the plaintiff.If the testimony taken under the rule had been offered at the trial, the trial might have resulted in a verdict in the defendant's favor.But, even though a court may feel that the result of a trial probably would have been changed if evidence available after trial had been introduced at the trial, it does not necessarily follow that a new trial should be granted.New trials on the ground of newly discovered evidence are not favored.Not only must a court feel that the evidence would probably have changed the result, but it must be satisfied that due diligence was...