Eathbun v. Brancatella

• Decision Date: 20 June 1919
• Docket Number: No. 81.,81.
• Citation: 107 A. 279
• Parties: EATHBUN v. BRANCATELLA.
• Court: New Jersey Supreme Court

107 A. 279

EATHBUN

v. BRANCATELLA.

No. 81.

Court of Errors and Appeals of New Jersey.

June 20, 1919.

Appeal from Circuit Court, Hudson County.

Action by Marietta Rathbun, administratrix of the estate of Frank Rathbun, deceased, against Bruno Brancatella. Judgment for plaintiff, and defendant appeals. Affirmed.

In an action for damages, resulting from an automobile collision with a pedestrian, one of the questions at issue was the ownership of the car. A bystander, observing the number, called it out aloud to another bystander, who at once made a written note of It, and gave it to a police officer within 15 minutes thereafter. The testimony of the latter two witnesses upon the subject of the identity of the number was objected to as hearsay, but the testimony was admitted. Held, its admission was proper as relating to a collateral and incidental inquiry, bearing upon the question of identity, viz. whether the number called out by the first bystander and heard by the second was the same which was transmitted by the latter to the police officer, and by him reported to police headquarters.

Pomerehne & Laible, of Newark, for appellant.

Mark Townsend, Jr., of Jersey City, for respondent.

MINTURN, J. (after stating the facts as above). The husband of the present plaintiff, while attempting to cross Fourth street at Avenue C, in Bayonne, was struck by defendant's automobile, proceeding at a high rate of speed while being driven by his chauffeur. As a result of the collision the deceased suffered the injuries from which he died, and a jury at the circuit to whom the consideration of the facts was submitted by the trial court found the defendant guilty of the negligence alleged against him, and from that verdict this appeal was taken upon the ground that the court refused either to grant a nonsuit, or to direct a verdict.

Upon consideration of the facts we have concluded that the trial court was correct in its rulings in these respects, and that the verdict must stand unless the exceptions taken to the admission of certain evidence are legally supportable. One Menandier, a bystander, attracted by the noise of the impact, observing the character and color of the license plate upon the colliding machine, called out in a loud voice, to Miss Sullivan, another observer, a school-teacher, and the daughter of a resident in the locality, the the number he had observed. She for the purpose apparently of remembering the number, entered her home and wrote the number upon an envelope.

For some time she retained the envelope, and used it as a reference for the purpose of enabling her to testify at various proceedings emanating from the accident. After some time, thinking the envelope of no future value, she destroyed it during a process of house cleaning. Among others she imparted the number to a police official, Officer Grant, within 10 or 15 minutes after the accident, and he reported it at police headquarters. Within the week after the accident, Menandier gave a similar statement to the police department. An agent of the state department of motor vehicles identified the number thus transmitted as the number of the defendant's car. It is urged now, as it was below, that the testimony of Miss Sullivan and Officer Grant was hearsay, and was inadmissible. The question propounded at the trial, and the theory upon which the testimony was admitted, was not whether the number thus transmitted afforded legal proof of the ownership of the particular plate or number by the defendant, but whether as a fact the number transmitted by Mennndier was the number recorded by Miss Sullivan, and by her transmitted to Officer Grant.

Its logical and evidential effect upon the substantive proof of ownership of the car, which was the question at issue, was entirely of an incidental or collateral character, in a sequence of circumstances not directly connected with the main proof before the jury.

In this light it was admissible, and not within the category of hearsay testimony. Upon a collateral inquiry of this character, it has been laid down that the rule requiring the production of the best evidence does not obtain where the inquiry or the production of the document involved is only incidentally or collaterally involved in the controversy. 10 R. C. L. 55 and cases cited; Faulcom v. Johnston, 102 N. C. 264, 9 S. E. 394, 11 Am. St. Rep. 737; Dixon Co. v. Myers Co., 71 W. Va. 715, 77...