Crothers v. Caroselli

• Decision Date: 20 May 1941
• Docket Number: No. 32.,32.
• Citation: 20 A.2d 77,126 N.J.L. 590
• Parties: CROTHERS v. CAROSELLI.
• Court: New Jersey Supreme Court

20 A.2d 77

126 N.J.L. 590

CROTHERS

v. CAROSELLI.

No. 32.

Court of Errors and Appeals of New Jersey.

May 20, 1941.

Syllabus by the Court.

It is not at the hands of a party to an action, offering himself as a witness and testifying in his own behalf, to cause himself to be contradicted or his testimony neutralized, through prior, oral or written, inconsistent or contrary statements made by him.

Appeal from Supreme Court.

Personal injury action by Gladys Crothers against Julius Caroselli. From a judgment of the Supreme Court, 125 N.J.L. 403, 16 A.2d 341, affirming a judgment for plaintiff, defendant appeals.

Affirmed.

McDermott, Enright & Carpenter, of Jersey City (John F. Ryan, of Elizabeth, of counsel), for appellant.

Collins & Corbin, of Jersey City (Edward A. Markley, James B. Emory, and Dominick J. Marchitto, all of Jersey City, of counsel), for respondent.

THE CHANCELLOR.

This is an appeal from a judgment of the Supreme Court, affirming a judgment of the Hudson County Common Pleas Court.

The facts are fully set forth in the opinion of the Supreme Court, 125 N.J.L. 403, 16 A.2d 341, and the grounds of appeal urged and argued here are identical with those presented to the court below.

We concur in the finding of the Supreme Court and affirm its judgment affirming that of the Common Pleas.

Upon the question of when and how the rule of contradiction and neutralization, by and through prior contradictory statements, is to be used, reference is made to State v. D'Adame, 84 N.J.L. 386, 86 A. 414, Ann.Cas.1914B, 1109 and Wassmer v. Public Service Electric & Gas Co., 122 N.J.L. 367, 5 A.2d 762, and the cases following them.

However, we have reached a conclusion respetting the error alleged in the refusal of the trial court to admit in evidence Exhibit D1, for identification, which we consider more dispositive of that question.

This was a paper writing or a statement allegedly made by the defendant, at a time prior to the trial of the cause. He presented himself as a witness testifying in his own behalf.

When a point was reached, in his direct testimony, where in answer to questions directed at an asserted material matter in issue, he said he did not remember. The paper was then presented to him for the purpose of refreshing his recollection, which he said it did. The use of the "refreshing" statement was then at an end and not admissible in evidence. The practice in this regard is specifically and correctly laid down by Mr. Justice Case in Springer v. Labow, 108 N.J.L. 68, 155 A. 476, Supreme Court.

This refreshment of recollection of the defendant-witness did not, apparently, bring forth from him answers that were satisfactory to his counsel who then registered surprise and thereafter sought the introduction of the exhibit for the purpose of neutralizing his client's, the defendant's, testimony.

This we say cannot be done.

The right to neutralize is authorized and approved, beyond question, in many cases, of which, the outstanding and much-quoted case is State v. D'Adame, 84 N.J.L. 386, 86 A. 414, Ann.Cas.1914B, 1109, supra. An examination of these cases indicates that the rule was applied and sanctioned where a witness, not a party to the action, was involved, or a party to the action was called as a witness by the adverse party. There is one case, Posner v. Nutkis, 137 A. 716, S Misc. 593, N.J.Supreme Court, which holds contrary to our present finding. That cause was before the Supreme Court on a rule for new trial, and, of course, did not reach this court.

Our investigation has brought to our attention only two other cases directly bearing upon the question before us.

One of them is, Horneman v. Brown, 286 Mass. 65, 190 N.E. 735, 738. Here the practice, which we say is not permissible, was approved. This seems to have been upon the ground that the statute regulating testimony, and the construction theretofore placed upon it by the court, authorized it. The court quoted from Hill v. West End Street Railway Co., 158 Mass. 458, 459, 33 N.E. 582, "There is no sound reason why the familiar doctrine that a party may contradict, though not impeach, his own witness, should not, if the circumstances are consistent with honesty and good faith, be applied when he is himself the witness". While the opinion states, "There is no evidence * * * that the defendant was being defended by an insurance company * * *. That the automobile was protected in some way * * * must be inferred from the fact that it was registered in this Commonwealth [Massachusetts where insurance is a compulsory requirement]. * * * Many cases have come before the courts involving such insurance and the rights and liabilities of various persons concerning the same. * * * Courts must necessarily examine such cases with care, to prevent fraudulent co-operation between a plaintiff and a nominal defendant at the expense of the insurer".

At common law, parties to, and persons interested in the result of, any action were not competent witnesses.

This prohibition has been lifted by statute, to the extent that the law in this State is; R.S. 2:97-1, N.J.S.A. 2:97-1, making all persons, subject...