Pepe v. Urban

• Decision Date: 16 January 1951
• Docket Number: No. A--681,A--681
• Parties: PEPE et al. v. URBAN.
• Court: New Jersey Superior Court — Appellate Division

Page 385

11 N.J.Super. 385

78 A.2d 406

PEPE et al. v. URBAN.

No. A--681.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 2, 1951.

Decided Jan. 16, 1951.

Harry Chashin, Bayonne, argued the cause for the appellants (Marcus & Levy, Paterson, and Hyman W. Rosenthal, Newark, attorneys).

Joseph J. DeLuccia, Paterson, argued the cause for the respondent (A. Leo Bohl, Paterson, attorney).

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

BIGELOW, J.A.D.

This appeal is unusual in that no consideration need be given to the facts that led to the litigation. The only matter for discussion is the court's handling of a situation arising at the trial from the failure of one of plaintiff's witnesses to appear.

The trial of the action, which was brought on account of personal injuries allegedly resulting from defendant's negligence, consumed a little more than one court day. At ten minutes before 1:00 o'clock, counsel for the plaintiff announced that he had completed the presentation of evidence on the subject of negligence; that he had subpoenaed a Doctor Crescente on the question of damages, but that he had not arrived. 'His office informs me that he has been in an operation, so I am helpless without him at this stage.' The court thereupon recessed for lunch. At 2:00 o'clock, the doctor had not yet arrived; so the defendant put in his case on liability and, at 3:15, rested, except for his medical testimony. The court recessed for five minutes. Counsel for plaintiff then presented an affidavit of service of the subpoena, and addressed the court: 'I have been in constant endeavor to communicate with Doctor Crescente, have spoken with his nurse two or three times since recess at one o'clock, and each time the answer has been given that the doctor has not been in touch with his office. When I spoke with her this morning, she said the doctor was in an operation which was an emergency and that he left word that he would try to be here by 12:30.'

Then counsel asked the court to issue a warrant to bring in Doctor Crescente, or in the alternative to carry the case until the next morning. But the court declined: 'A warrant may cause a lot of damage. * * * I think we must go on with the case. We cannot afford to lose this time.' Counsel made a last motion, for a dismissal of the action without prejudice, and this, too, the court denied. Thereupon, the defendant completed his case by presenting a surgeon who testified to the extent of plaintiff's injuries. The lawyers summed up; the next morning the court charged the jury; a verdict was returned for defendant, and judgment entered accordingly.

Since the jury found in favor of the defendant generally, the question of the severity of plaintiff's injuries became immaterial. And yet we think the evidence of Doctor Crescente might have been an important part of her case. The court charged the jury: 'If you believe a witness is deliberately falsifying his or her testimony with regard to a material fact, you may disregard all of that witness' testimony.' If the jury thought plaintiff's testimony about her injuries to have been deliberately false, they may have considered all her testimony, including her narrative of the accident, to have been unworthy of credit and have disregarded it. Plaintiff was subjected to a rigorous cross-examination about her injuries, the medical treatment which she received, and medical expenses incurred. Doctor Rubacky, who examined plaintiff in the interest of defendant 20 days after the accident, testified in substance that she had then fully recovered from the effects of the accident. 'All her complaints could be readily attributed to an old arthritic process which she had throughout her body.' Doctor Crescente was the man who had treated plaintif...