Falcone v. New Jersey Bell Tel. Co., A--234

CourtNew Jersey Superior Court – Appellate Division
Citation98 N.J.Super. 138,236 A.2d 394
Docket NumberNo. A--234,A--234
PartiesJules J. FALCONE, Plaintiff-Appellant, v. NEW JERSEY BELL TELEPHONE COMPANY, a New Jersey corporation, and Richard Keppler, Defendants-Respondents.
Decision Date28 November 1967

Augustus S. Goetz, Ocean City, for appellant (John W. Gilbert, Ocean City, of counsel).

W. Reading Gebhardt, Clinton, for respondents (Gebhardt & Kiefer, Clinton, attorneys).


The opinion of the court was delivered by


Plaintiff appeals from a judgment of $5,000 in his favor following a jury verdict in that amount.

Plaintiff sued for personal injuries sustained on October 14, 1958 when his vehicle was struck in the rear by one owned by defendant New Jersey Bell Telephone Company and driven by its employee Keppler. Both cars had been proceeding north on South Main Street, Phillipsburg. Plaintiff testified that when he reduced speed because the car ahead of him did so preparatory to making a left turn, he was struck in the rear by defendants' panel truck. Keppler's version was that plaintiff had been following closely behind the car ahead and stopped suddenly when the car ahead did so; thus he was unable to avoid striking him. There was a sharp dispute as to the severity of the crash, plaintiff testifying that the impact had driven him ahead some 30 to 35 feet and into the curb, while Keppler stated that the distance was only two to three feet.

At the trial, which began on September 26, 1966 and lasted eight days, plaintiff acted as his own attorney. His previous counsel had withdrawn on May 21, 1966. On June 15 the case was continued (peremptorily) until September 26, 1966 in order to permit plaintiff to obtain new counsel. He appeared on the trial date without counsel.

By its verdict the jury found 'the defendant guilty of negligence' and awarded plaintiff the sum of $5,000. The present appeal followed. Defendants did not cross-appeal.

Plaintiff first contends that it was error to compel him to proceed to trial without counsel. We disagree. Plaintiff had been notified of the trial date three months in advance. The case was eight years old. Two of his treating doctors had already died, another was no longer available as a witness, and one of defendants' examining doctors had allegedly become so ill as to be unable to appear in court. Although plaintiff made a motion that the judge disqualify himself, no motion to continue the case was ever made. This apparently led the trial judge to conclude that plaintiff had elected to try his own case and he proceeded to warn plaintiff of the inadvisability of so doing. When plaintiff protested that he had not had sufficient time to secure counsel, the argument ended with the following colloquy:

'The Court: You had from June 15th which I consider sufficient time to get an attorney.

Mr. Falcone: I accept that.

The Court: We will start in five minutes.'

Plaintiff next contends that the verdict for $5,000 in his favor was so grossly inadequate as to require that it be set aside as the undoubted result of passion, prejudice, mistake or partiality on the part of the jury. The difficulty with his position is that a motion for a new trial, which is a prerequisite to relief on this ground, was never made. R.R. 1:5--3(a), made applicable here by R.R. 2:5. In any case the point is not important since we are reversing for other reasons and plaintiff will have a new trial.

Plaintiff next challenges the admission into evidence over objection of the deposition of Dr. Rolf E. Johnson, one of defendants' examining doctors. Dr. Johnson, an orthopedic surgeon, first examined plaintiff some 16 days after the accident and made six other examinations thereafter, the last on May 8, 1964. In December 1965 Dr. Johnson was found to be suffering from a heart disorder involving high blood pressure, hypertension and hypertensive cardio-vascular disease. In September 1966, shortly before the trial date, defendants served notice of the taking of his deposition. Since plaintiff did not appear or request that it be adjourned, the deposition was taken and later offered in evidence at the trial. In support of its admission Dr. Feinberg, Dr. Johnson's treating physician, testified that in his opinion Dr. Johnson was not able to appear and testify. Although no contradictory testimony was introduced, plaintiff now contends that since it was conceded that Dr. Johnson was able to be about and attend to his ordinary duties, his deposition should have been excluded and he should have been required to appear personally. We are satisfied that the trial judge did not commit an abuse of discretion in admitting the deposition. R.R. 4:16--4(c)(3). Dr. Feinberg testified that Dr. Johnson's heart condition was such that it would become aggravated when he became excited or upset. He related that Dr. Johnson's last encounter with plaintiff had been so upsetting as to bring about a cardiac attack (characterized by irregular heartbeat and shortness of breath) and opined that, 'because of the potential seriousness and danger' involved, he was not able to appear and testify.

Plaintiff next challenges the exclusion of the testimony of certain of his witnesses whose names had not been furnished in the answers to interrogatories served by his attorney upon defendants. R.R. 4:23--1 et seq. In the answer to an appropriate interrogatory, only the names of plaintiff and defendant Keppler were originally submitted. Plaintiff's answers were later amended, but only to include the names of two physicians. At the trial plaintiff represented that he desired to call four witnesses whose names had not been furnished defendants by way of answers to interrogatories or otherwise. Two of these, Joseph Meischeid and plaintiff's wife, Ellen Falcone, were actually present, but it is not clear as to whether the remaining two were in court. The trial judge relaxed the rule to permit Mrs. Falcone--and also Dr. Stein, plaintiff's expert medical witness, whose name had also been omitted--to testify. R.R. 1:27A. Plaintiff now complains of the failure to further relax the rule so as also to permit the testimony of Meischeid and the two unnamed witnesses referred to.

We cannot say that the trial judge was in error in declining further to relax the rule. Evtush v. Hudson Bus Transportation Co., 7 N.J. 167, 81 A.2d 6, 27 A.L.R.2d 731 (1951); Kronmiller v. Caruso, 57 N.J.Super. 331, 154 A.2d 739 (App.Div.1959). Plaintiff should have brought his answers to defendants' interrogatories up to date at least 20 days before the time set for trial. R.R. 4:23--12. After that date amendments were to be allowed only for extraordinary or compelling reasons, or to prevent manifest injustice, and in no case were they to be allowed at the trial where the subject matter of the proposed amendment was known to the party seeking leave to amend more than ten days prior to trial. Ibid. In determining whether relaxation of the rule should be permitted the trial court is allowed broad discretion. Cf. State v. Reynolds, 41 N.J. 163, 195 A.2d 449, 1 A.L.R.3d 1438 (1963), certiorari denied 377 U.S. 1000, 84 S.Ct. 1934, 12 L.Ed.2d 1050 (1964), rehearing denied 379 U.S. 873, 85 S.Ct. 22, 13 L.Ed.2d 81 (1964). We find no abuse of discretion here. The situation with which the court was confronted differed substantially from that in Gibilterra v. Rosemawr Homes, Inc., 32 N.J.Super. 315, 108 A.2d 295 (App.Div.1954), affirmed 19 N.J. 166, 115 A.2d 553 (1955), where there had been a motion for a mistrial following the exclusion of the testimony of an expert witness which was vital to plaintiff's case, and a new trial was granted. Here there was no motion for a mistrial (or for dismissal without prejudice) and we are not advised that the testimony of these three lay witnesses would have been more than cumulative to testimony given by other witnesses.

Plaintiff next complains of the exclusion by the trial judge of a portion of the medical record of plaintiff's deceased treating physician, Dr. Pohlidal. His treatment of plaintiff began on the day of the accident and his record was verified through the deposition of his then medical secretary whose duty it had been to make up the medical record of each patient for him from his longhand notes. The trial judge held the record of plaintiff's treatment to be admissible under the Business Records as Evidence Act, N.J.S. 2A:82--35, N.J.S.A., but deleted therefrom the doctor's diagnosis of a herniated intervertebral disc. Plaintiff urges that this exclusion constituted prejudicial error. Defendants argue that since the diagnosis represented the doctor's opinion it was inadmissible.

The statute in question, N.J.S. 2A:82--35, N.J.S.A., 1 provides:

'A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.'

The basic theory underlying the admissibility of such records was set forth in Mahoney v. Minsky, 39 N.J. 208, 188 A.2d 161 (1963) as:

'* * * (R)ecords which are properly shown to have been kept as required normally possess a circumstantial probability of trustworthiness, and therefore ought to be received in evidence unless the trial court, after examining them and hearing the manner of their preparation explained, entertains serious doubt as to whether they are dependable or worthy of confidence. The last clause of the statute that the books should be accepted 'if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission,' confers...

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