Miller v. Henderson

• Decision Date: 09 July 1956
• Docket Number: No. A--136,A--136
• Citation: 124 A.2d 23,41 N.J.Super. 15
• Parties: Bobbie Lee MILLER, etc., et al., Plaintiffs-Respondents, v. Lawrence HENDERSON et al., Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 15

41 N.J.Super. 15

124 A.2d 23

Bobbie Lee MILLER, etc., et al., Plaintiffs-Respondents, v. Lawrence HENDERSON et al., Defendants-Appellants.

No. A--136.

Superior Court of New Jersey Appellate Division.

Argued June 4, 1956.

Decided July 9, 1956.

Before Judges CLAPP, JAYNE and FRANCIS.

Frederick c. Vonhof, Newark, for appellants Lawrence Henderson and Roberta Austin (Albert M. Neiss, East Orange, attorney).

Jesse Moskowitz, Jersey City, for respondents.

The opinion of the court was delivered by

FRANCIS, J.A.D.

In this automobile negligence action the plaintiffs were awarded verdicts for injuries suffered and expenses incurred as the result of a highway accident. The mishap occurred in the City of Zanesville, Ohio, when the automobile in which they were riding and which was owned by the defendant Lawrence Henderson, and driven by the defendant Roberta Austin, went off the road and turned over.

Since the incident took place in Ohio, every one concedes that the law of that state controls the plaintiffs' cause of action. Clement v. Atlantic Casualty Ins. Co., 13 N.J. 439, 442, 100 A.2d 273 (1953); Cohen v. Press, 31 N.J.Super. 45, 105 A.2d 905 (App.Div.1954), certification denied 16 N.J. 197, 108 A.2d 36 (1954). The pertinent statute provided 'The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.' Ohio Gen.Code, § 6308--6 (1948) (substantially reenacted by Ohio Rev.Code, § 4515.02 (1953)).

There is no claim here that the driver defendant was guilty of wilful or wanton misconduct. Ordinary negligence is charged, and the right to recovery is predicated on the theory that plaintiffs were being transported for payment within the contemplation of the enactment.

In construing the act, the Ohio courts have said that when a definite and enforceable contract for the sharing of all or a portion of the expenses of the trip is made prior to the beginning of the journey, the rider is a paying passenger and not a mere guest. When such an agreement appears, the matter of adequacy or inadequacy of the payment (whether it be money or services or other means of compensation) is of no importance because the parties have made their own bargain. Birmelin v. Gist, 162 Ohio St. 98, 120 N.E.2d 711 (1954); Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R.2d 1342 (1949); Miller v. Fairley, 141 Ohio St. 327, 48 N.E.2d 217 (1943); Duncan v. Hutchinson, 139 Ohio St. 185, 39 N.E.2d 140 (1942); Dorn v. Village of North Olmstead, 133 Ohio St. 375, 14 N.E.2d 11, 14 (1938); Beer v. Beer, 52 Ohio App. 276, 3 N.E.2d 702 (Ct.App.1935); Annotation, 10 A.L.R.2d 1351, 1361, 1365, 1367 (1950).

The testimony in the present case is in conflict as to the arrangement or circumstances under which plaintiffs were occupants of the car. However, it does appear that in the summer of 1952 the plaintiff Bobbie Lee Miller and the defendant Austin were planning a trip to Waycross, Georgia, to see their sister. Mrs. Miller's two children, the infant plaintiffs, were to accompany her. About that time, while riding in Henderson's car, she discussed the matter with him. She told him she intended to go by train. He said he was thinking of visiting relatives in St. Louis and in Jackson, Mississippi, and suggested that he might be able to do so around the Christmas holidays; if she would wait until then, it would not cost her as much as the train fare. He would take her and her sister, Roberta Austin, to Georgia, provided they went with him to see his relatives in the places mentioned and provided she (Mrs. Miller) would share the driving 'all the way around' and pay the gasoline bills from Philadelphia (the point of departure) to Georgia. The plaintiff Miller agreed to do this.

On December 17, 1952 Mrs. Miller and the children went to the home of her sister, the defendant, Roberta Austin, in Philadelphia. Mrs. Austin had already purchased train tickets to Georgia for herself and her sister, apparently believing that Henderson could not make the trip. However, on the evening of the arrival of the Millers, Henderson came to the Austin home and said he was ready to go. At this time the agreement already outlined was reiterated.

On the journey to Georgia Mrs. Miller gave $10 to her sister, who turned it over to Henderson when he was getting gasoline. Mrs. Austin also supplied money for the same purpose on a number of occasions. The proof showed that Mrs. Miller shared the driving three times enroute to Georgia, twice between Georgia and Mississippi; twice from Mississippi to St. Louis and had driven once after leaving the latter city before the accident.

On arrival in Waycross, Georgia, all of them, including Henderson, were guests for a week at the home of the sister. Then they left and drove to Henderson's relatives' place in Mississippi where they stayed two days. From there they went to see his relatives in St. Louis, again remaining two days. The persons visited in these last two places were unrelated to Mrs. Miller; she did not know them.

We agree with the trial court that this testimony created a jury question under the Ohio cases as to whether the plaintiffs were paying passengers or simply guests. As already indicated, there was a divergence in the statements of the parties as to whether the agreement contended for was made. But under well settled principles, the problem of credibility was for the jury. When the motion to dismiss was made, it was necessary to accept as true all the proof which was favorable to the plaintiffs and also to give them the benefit of all helpful inferences capable of being drawn therefrom. After doing so, if the minds of reasonable men might differ honestly as to whether the arrangement described by Mrs. Miller was made, it was the duty of the court to hold the case for jury determination. McDermott v. Standard Accident Ins. Co., 40 N.J.Super. 119, 124, 122 A.2d 371 (App.Div.1956), and cases cited therein. In our judgment, this test was satisfied and the court's action in denying the motion was judicially proper. Likewise, in our opinion he did not err in refusing to grant a new trial which was sought on the ground that the verdicts were contrary to the weight of the evidence.

However, on one phase of the case we agree that reversible error was committed.

During the cross-examination of the plaintiff Mrs. Miller, a signed statement given by her after the accident was produced. She admitted her signature thereon and that it was signed three days after the accident. It was marked for identification and appears in the appellants' appendix. Perusal reveals a conflict as to the existence of any such contract as she claimed in her testimony. But efforts to examine her on the contents were prevented by the court, who took the position that such questioning was improper unless counsel represented that he intended to produce the person who took the statement in the event she denied any of the matters contained therein. He said:

'I sustained the objection. The witness is entitled to be confronted with whom she is alleged to have made any such statement to.'

And farther on:

'The Court: I will allow you to interrogate on that question provided the person to whom she made the statement is to be called as a witness. She is entitled to be confronted with the person she made the statement to. If you are not, then she is not going to be allowed to say. Unless you are going to call that person in the event she denies she made that statement.

'Mr. Neiss: Before I note my objection, may I make another statement? A statement was taken by an attorney at law of the State of Ohio. I don't think we are going to bring him in, fly him in from Ohio. This woman acknowledges that she did say, and I think I have a perfect right to question her on it.

'The Court: I have already ruled on it. I want to make it clear that you are perfectly well entitled to use the statement in cross examination of a Witness. In the event she denies any of the statements, you will then call the person whom she is alleged to have made such a statement to. (Emphasis ours.)

'I understand that he is a lawyer from Ohio and you are not going to call him. Therefore, I rule that you are not entitled to interrogate her on the statement itself.'

Emphasis has been placed on the word 'witness' as used by the court because it probably explains the erroneous ruling. For many years New Jersey has had different rules with respect to the use on cross-examination and the admissibility of a signed statement when the person testifying is a witness as distinguished from a party to the action.

When a witness has made a prior inconsistent signed statement, it is not admissible for purposes of impeachment unless a proper foundation is laid on cross-examination. This is done by calling the witness' attention to the statement in such a manner as to identify it reasonably and by obtaining his admission as to the signature thereon, if possible. However, even if the signing is conceded, inquiry must be pressed as to whether he made the declarations contained therein which are in conflict with his testimony. If they are admitted, then it would serve no purpose to put the writing in evidence. Wasil v. Gula, 169 A. 544, 12 N.J.Misc. 53, 56 (Sup.Ct.1933). But a denial of them creates the basis for the introduction of the statement on the case of the cross-examiner. Chiesa v. Public Service Coordinated Trans., 128 N.J.L. 69, 73, 24 A.2d 369 (E. & A.1942); Wassmer v. Public Service Electric & Gas Co., 122 N.J.L. 367, 373, 5 A.2d 762 (E. & A.1939); Daum v. North Jersey St. Ry. Co., 69 N.J.L. 1,...