Grannan v. Fox

• Decision Date: 31 January 1924
• Docket Number: No. 7.,7.
• Citation: 126 A. 398
• Parties: GRANNAN et al. v. FOX.
• Court: New Jersey Supreme Court

126 A. 398

GRANNAN et al.

v. FOX.

No. 7.

Court of Errors and Appeals of New Jersey.

(Syllabus by the Court.)

Appeal from Circuit Court, Atlantic County.

Action by Alice Grannan and another against Reuben R. Fox. From a judgment for plaintiffs, defendant appeals. Affirmed.

John C. Reed, of Atlantic City, for appellant.

Cole & Cole, of Atlantic City, for respondents.

WALKER, Ch. This was an action in the Atlantic circuit court where plaintiffs had a verdict and judgment, and defendant appeals.

The defendant was the owner of a warehouse in Atlantic City, and the plaintiffs were the owners of certain goods and chattels which they stored therein. A fire occurred at the warehouse, and the plaintiffs' goods were damaged. Hence this suit. The questions raised under the grounds of appeal do not require any more detailed statement of the facts.

The first ground of appeal is that the trial court erred in admitting in evidence for the plaintiffs the interrogatories propounded by the defendant to the plaintiffs and the answers by them on the ground that they could not be put in evidence under the statute except by the party propounding them. While Comp. Stat. p. 4097, § 140, provides inter alia that the answers shall be evidence in the action if offered by the party proposing the interrogatories, but not otherwise, nevertheless there is here no objection to this offer on the part of the plaintiffs, who argue that, even if objection had been made, it would have been untenable, as the offer was legal on rebuttal. Whether so or not, which is not decided, the evidence was lawful because not objected to. On principle, it is like the giving of testimony by the living defendant concerning conversations with decedent in a suit brought by the representative of a deceased person, which, if admitted without objection, it is not in the power of the court afterwards to strike out because its admission is opposed to the statute; the court can strike out testimony so admitted only when its exclusion is demanded by some consideration of public policy. Rowland v. Rowland, 40 N. J. Eq. 281. And no public policy supervenes here. The question is one entirely inter partes.

The second ground of appeal is that the awarding of damages on the second count cannot be sustained by any evidence except in the answers to the written interrogatories. This, in effect, is a concession that the answers to the interrogatories sustain the second count; the theory being that they were illegally admitted. Treating the paragraph of the complaint numbered 2 as a separate count, still, as there was no objection to the admission of the interrogatories and the answers thereto, they were legally in evidence, and the objection consequently falls.

The third ground is that the court submitted the case to the jury on the theory that defendant was bound to keep the goods in a reasonably safe place despite the uncontradicted testimony that plaintiffs, after examination and inspection, had selected the place of storage on the premises. Respondents' argument on this score is that no exception was taken to that part...