Ciardella v. Parker

Decision Date15 December 1950
Docket NumberNo. A--463,A--463
PartiesCIARDELLA et al. v. PARKER.
CourtNew Jersey Superior Court — Appellate Division

Harry Chasin, Bayonne, argued the cause for the appellant (Marcus & Levy, Paterson, attorneys).

Joseph J. DeLuccia, Paterson, argued the cause for the respondent (A. Leo Bohl, Paterson, attorney).

Before Judges FREUND, PROCTOR, and ROGERS.

The opinion of the court was delivered by

PROCTOR, J.A.D.

Plaintiffs appeal from an adverse judgment entered upon a verdict in the Superior Court, Law Division, in a negligence action arising out of a collision between an automobile owned and operated by the defendant Parker, and an automobile owned and operated by the plaintiff Ciardella, in which plaintiff Louise Carbone was an occupant. Ciardella sued for damages for the repairs to his automobile, and Louise Carbone sought damages for personal injuries sustained by her.

There was a sharp conflict in the testimony as to the cause of the collision. Plaintiff's theory was that their car was parked off the highway when defendant's car struck the rear of the Ciardella car. On the other hand, defendant contended that Ciardella suddenly backed his automobile into the highway from a driveway, striking defendant's vehicle.

The plaintiffs advanced three grounds for reversal of the judgment against them: (a) the examination of the witness Hannold constituted harmful error; (b) the court erred in its charge; (c) the court erred in its refusal to charge as requested.

Hannold, chief of police of the municipality where the collision occurred, was called as a witness for the defendant. After asking the witness to identify himself and also bringing out that he had been subpoenaed by the plaintiffs (but not called by them), defendant's attorney, over objection, was permitted to show the witness a written statement. Hannold testified that the statement contained his signature. Over objection, the witness was allowed to read the statement to himself, after which he testified as to the position of the cars when he arrived at the scene of the collision. The witness was then interrogated by defendant's attorney:

'Q. Now, Officer Hannold, did Mr. Ciardella make any statement to you? A. Sir, not that I recall.'

Defendant's attorney thereupon pleaded surprise and asked permission to cross-examine the witness, which the court granted. The examination continued:

'Q. Did you on October 28, 1948 make the statement that I permitted you to read a few minutes ago? A. Yes, sir, that is my handwritting there and my signature.'

After a colloquy between the court and counsel, the following occurred: 'Q. Now, did Mr. Ciardella make any statement to you concerning the accident? A. Sir, not that I recall. That night, there was a lot of excitement. There was quite a crowd around there, and being a police officer. And you see the girl was hurt, she was crying, I could not say. 'Q. Did he, Officer, make the following statement to you:

"I talked to the drivers of both cars, and the driver of the car that was in the driveway told me he would pay for the damages as it was his fault.'

'Did he make that statement?

'Mr. Chashin: Your Honor, I object on all the grounds which I previously have stated, if your Honor please. I thought you would prefer I would not repeat the reasons. They are all comprised within the objection to the prior question.

'The Court: I will allow it.

'Q. Do you want the question re-read or can you answer it? A. I would like to ask that question over again.'

(The last question read by the Reporter.)

'The Witness: I cannot recall that he did.

'Q. Did you in your statement of October 28th, 1948 say, 'I talked to the driver of both cars, and the driver of the car that was in the driveway told me that he would pay for the damages as it was his fault'?'

The answer, not being responsive, was struck.

Later the defendant called a witness, Grist, an investigator, who testified he took a statement, signed by Hannold, on October 28, 1948. On objection, the written statement was not admitted in evidence.

It is clear that a party whose cause or defense is injured by the unexpected answer of his own witness may, upon a showing of surprise, neutralize the effect of the adverse testimony by proving that, at a previous time, the witness had made a statement inconsistent with his testimony. Stappenbeck v. Jagels Fuel Corp., 131 N.J.L. 215, 35 A.2d 631 (E. & A.1944). This may be accomplished by cross-examination of the witness. State v. Hogan, 137 N.J.L. 497, 61 A.2d 70, 73 (old Sup.Ct.1948), affirmed 1 N.J. 375, 63 A.2d 886 (Sup.Ct.1949). However, the purpose of such cross-examination is limited, as stated by Justice Burling in State v. Hogan, supra: 'This cross-examination is permitted for the sole purpose of neutralizing or of wiping the slate clean of the unexpected adverse testimony of the witness and is to be clearly distinguished from impeachment.'

In the present case there was no 'adverse' or hurtful testimony given by Hannold and, consequently, there was nothing to be erased. The effect of neutralizing the testimony of the witness should never be more than the cancellation of the adverse answer by which the party is surprised. Moon v. Lewis, 116 N.J.L. 521, 185 A. 12 (E. & A.1936); State v. D'Adame, 84 N.J.L. 386, 86 A. 414 (E. & A.1913). Therefore, where the witness, as here, gives no testimony injurious to the party calling him but only fails to render the assistance which was expected, because of a failure of recollection, there is no basis for neutralizing under the rule. While a party should not be denied the right to defend his case by an unwilling or hostile witness, yet he should not be permitted to read before the jury an unsworn statement of such witness under the pretense of neutralizing his testimony. See cases in Note, 74 A.L.R. at 1064 et seq.; Note, 117 A.L.R. 326; Note 42 L.R.A. (N.S.) 747; 58 Amer.Jur. 445, § 800 et seq. See also Wigmore on Evidence, 3rd Ed., §§ 1018, 1043.

Under the circumstances, it was unusual for the defendant to be permitted to show his own witness the signed statement and to require the witness to read it before he had been asked any questions concerning a fact in issue. After Hannold testified that the written statement contained his signature but that he did not recall Ciardella's making any statement to him, defendant's counsel was permitted, in the presence of the...

To continue reading

Request your trial
6 cases
  • State v. Cestone
    • United States
    • New Jersey Superior Court — Appellate Division
    • November 21, 1955
    ...316, 331, 78 A.2d 560, 23 A.L.R.2d 907 (1951); Dawson v. Holcomb, 4 N.J.Super. 563, 68 A.2d 281 (App.Div.1949); Ciardella v. Parker, 10 N.J.Super. 537, 77 A.2d 496 (App.Div.1950); Palatini v. Sarian, 15 N.J.Super. 34, 41, 83 A.2d 24 (App.Div.1951) ; Burke v. Lincoln Transit Co., 37 N.J.Supe......
  • People v. Durkee
    • United States
    • Michigan Supreme Court
    • April 5, 1963
    ...and witness was required to read it. Thereafter he still insisted he could not recall. The New Jersey court in Ciardella et al. v. Parker, 10 N.J.Super. 537, 77 A.2d 496 [1950] '[U]se of written statement to refresh memory was then at an end, and thereafter it was improper to call attention......
  • State v. Gallicchio
    • United States
    • New Jersey Supreme Court
    • May 24, 1965
    ...fact contrary to the proponent's case. State v. Perillo, 18 N.J.Super. 549, 87 A.2d 727 (App.Div.1952); Ciardella v. Parker, 10 N.J.Super. 537, 77 A.2d 496 (App.Div.1950). See McCormick, Evidence, c. 5, sec. 38, p. 78 (1954). 1 The State's theory was that Gallicchio was the armed aggressor.......
  • Rivera v. Grill
    • United States
    • New Jersey Superior Court — Appellate Division
    • January 30, 1961
    ...N.J.L. 521, 185 A. 12 (E. & A.1936); Rhodehouse v. Director General, 95 N.J.L. 355, 111 A. 662 (Sup.Ct.1920); Ciardella v. Parker, 10 N.J.Super. 537, 77 A.2d 496 (App.Div.1950); State v. Cestone, 38 N.J.Super. 139, 118 A.2d 416 (App.Div. For the same reason, the refusal of the trial court t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT