Mitilenes v. Snead

• Decision Date: 07 June 1957
• Docket Number: No. A--209,A--209
• Citation: 45 N.J.Super. 246,132 A.2d 321
• Parties: Vasiliki G. MITILENES, General Administrator of the Estate of George D. Mitilenes, and Vasiliki G. Mitilenes, Administrator ad prosequendum of the Estate of George D. Mitilenes, Plaintiff-Appellant, v. Walter SNEAD, Robert Snead and Constantine E. Carras, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 246

45 N.J.Super. 246

132 A.2d 321

Vasiliki G. MITILENES, General Administrator of the Estate of George D. Mitilenes, and Vasiliki G. Mitilenes Administrator ad prosequendum of the Estate of George D. Mitilenes Plaintiff-Appellant, v. Walter SNEAD, Robert Snead and Constantine E. Carras Defendants-Respondents.

No. A--209.

Superior Court of New Jersey, Appellate Division.

Argued June 3, 1957.

Decided June 7, 1957.

Edward J. Abromson, Newark, argued the cause for appellant.

Jerome S. Lieb, Newark, argued the cause for respondent Constantine E. Carras (Harkavy & Lieb, Newark, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiff, as general administrator and as administrator Ad prosequendum, appeals from a Superior Court, Law Division, judgment in favor of defendant Carras in an intersectional automobile negligence action resulting in the death of his decedent, George D. Mitilenes.

Decedent was a passenger in the Carras automobile travelling east on Branford Place, Newark, at 6 A.M. on the morning of the accident. Defendant Robert Snead was driving defendant Walter Snead's car north on Washington Street. The intersection at Branford Place and Washington Street is controlled by traffic signals. As in all actions of this nature, each defendant places the blame on the other. Carras claims that the green light was in his favor as he proceeded through the intersection. He testified that the first time he saw the Snead car was 'a split second before the impact,' and this was repeated several times during direct and cross-examination. He tried to apply his brakes and veer to the left, but these efforts to escape collision were unsuccessful; his testimony was 'The moment I saw it, it hit.' The jury returned a verdict in favor of plaintiff against Robert Snead, a verdict of no cause of action against Carras, and a verdict in favor of Carras on his cross-claim against Snead. The claim against Walter Snead was dismissed with prejudice at pretrial.

Robert Snead filed no appeal from either of the judgments against him. However, by letter sent through counsel he informally sought leave to adopt appellant's brief and join in the appeal. Such leave cannot be granted. There was no timely filing and service of a notice of appeal from either of the judgments, and they cannot be disturbed. In re Pfizer's Estate, 6 N.J. 233, 239, 78 A.2d 80 (1951).

The basis of plaintiff's present appeal is that the trial court improperly refused to permit Carras to be cross-examined as to testimony given in a previous criminal proceeding, arising out of the same accident, the contention being that it was inconsistent with Carras' testimony in the instant proceedings.

The cross-examination in question was by counsel for Snead, not plaintiff. Carras was asked:

'Q. Was this question asked you (in the criminal proceeding): 'When you first saw this car you say it was just a question of a second before the impact occurred. Is that right?'

'And at that point the Court said: 'He saw the other car a split second before the impact.'

'Then the question: 'At that time can you tell the Court and the jury where the car was, the car that struck you?'

'Your answer: 'I did not see that car, sir.'

'Was that your answer to that question at the time?'

Following extended colloquy, the court refused to allow the question to be answered. After reading the page of the transcript from which counsel was quoting, as well as the preceding page where Carras had testified that he first saw the Snead car 'a split second before' the collision, the trial judge stated that he did not see 'a sufficient clarity in contradiction to allow it.' Counsel acquiesced in the ruling. Thereupon plaintiff's attorney, who had already completed his cross-examination, began to importune the court to change its ruling. After further colloquy, the trial judge adhered to his position and said: 'I will not permit the taking of one question out of context. * * * (U)nder the Then case (State v. Then, 118 N.J.L. 31, 190 A. 495 (Sup.Ct.1937), affirmed 119 N.J.L. 429, 196 A. 740 (E. & A.1938)) everything that was said on the point at that moment should be admitted.'

Counsel for plaintiff did not undertake to offer the remainder of the transcript. The court's adherence to its ruling is the sole basis of the present appeal. Plaintiff's argument is that the testimony sought to be adduced under cross-examination by counsel for Snead was directly relevant to the issue. He claims that had the latter successfully attacked the witness' credibility in this regard, the jury might well have refused to accept Carras' testimony, which Snead disputed, as to the color of the light, and this under the familiar doctrine of false in one thing, false in everything. Clark v. Public Service Electric Co., 86 N.J.L. 144, 91 A. 93 (E. & A.1914). He asserts, further, that had the conflicting testimony been admitted, the jury might then have reasonably found that Carras' failure to see the Snead car was occasioned by his failure to make a proper observation, or any observation at all. Duffy v. Cratsley, 29 N.J.Super. 141, 102 A.2d 63 (App.Div.1953).

It is elementary that a prior contradictory declaration of any party to the litigation, inconsistent with or contradictory of his present claim, is admissible by the opposing party to neutralize the testimony of the declarant, and once admitted into evidence it may be used as substantive, affirmative proof. New Amsterdam Casualty Co. v. Popovich, 18 N.J. 218, 224, 113 A.2d 666 (1955); Kink v. Eastern Aircraft, etc., 136 N.J.L. 540, 541, 57 A.2d 8 (E. & A.1948). The extent to which the introduction of such evidence is permitted on cross-examination of a party has in this State often been said to be within the sound discretion of the trial court, and its exercise will not be interfered with in the absence of palpable mistake. Palkoski v. Garcia, 32 N.J.Super. 343, 351, 108 A.2d 271 (App.Div.1954), affirmed 19 N.J. 175, 115 A.2d 539 (1955); Disque v. State, 49 N.J.L. 249, 250, 8...