Roberts v. Saunders

• Decision Date: 12 April 1937
• Docket Number: Nos. 16, 48.,s. 16, 48.
• Citation: 194 A. 1,118 N.J.L. 548
• Parties: ROBERTS v. SAUNDERS. SAME v. RASHTI et al.
• Court: New Jersey Supreme Court

194 A. 1

118 N.J.L. 548

ROBERTS

v. SAUNDERS.

SAME

v. RASHTI et al.

Nos. 16, 48.

Court of Errors and Appeals of New Jersey.

April 12, 1937.

Justice LLYD dissenting, and The CHANCELLOR, Justice HEHER and Judges WOLFSKEIL and COLE dissenting in part.

Appeal from Supreme Court.

Action by Frank Roberts against Harry Saunders, Jack Rashti, and another, in which defendants filed counterclaims. From a judgment for plaintiff against named defendants, the latter appeal.

Reversed for issuance of venire de novo.

Bolte & Miller, of Atlantic City, for respondent. Siracusa & Backer, of Atlantic City, for appellant Harry Saunders. Garrison & Weaver, of Atlantic City, for appellant Jack Rashti.

PARKER, Justice.

The plaintiff-respondent, Roberts, while walking in an easterly direction on the north side of Arctic avenue in Atlantic City, N. J., was injured just after crossing Maryland avenue when an automobile owned and operated by the defendant Rashti ran up on the sidewalk and struck him after a collision between that car going north on Maryland avenue and an automobile owned by the defendant Joseph Saunders, and driven by the defendant Harry Saunders, going east on Arctic avenue.

Roberts instituted this action in negligence against Rashti, Harry Saunders, and Joseph Saunders. All the defendants joined issue. The defendant Rashti filed a counterclaim for property damage against the defendant Harry Saunders, and the defendants Harry Saunders and Joseph Saunders each filed counterclaims against the defendant Rashti; Harry Saunders for personal injuries and Joseph Saunders for property damage to his automobile.

The action of the plaintiff, Roberts, against the defendant Joseph Saunders was nonsuited, or verdict directed for defendant on the ground that there was no proof that the automobile owned by Joseph Saunders and operated by Harry Saunders was being operated at the time of the accident on the business of the defendant. Joseph Saunders. The counterclaim of Rashti against Harry Saunders was also nonsuited, and there was no exception to that ruling.

The remaining issues were submitted by the trial court to the jury, which returned a verdict in favor of the plaintiff, Roberts, against both defendants Jack Rashti and Harry Saunders, in the sum of $30,000, and a verdict in favor of Harry Saunders against the defendant Jack Rashti, in the sum of $200. No verdict of any kind was returned on the counterclaim of Joseph Saunders against the defendant Rashti for property damage to his automobile. On rules to show cause, the plaintiff accepted a reduction of the verdict against Saunders and Rashti to $20,000, and judgment was entered for that amount and is before us on this appeal.

A number of grounds of appeal are argued in each case; some of which, though meritorious and in our view intrinsically sufficient for reversal, are unavailable for technical procedural reasons. We conclude, however, that the judgments should be reversed for other reasons presently to be stated.

The first error leading to reversal consists in the exclusion by the trial court of a question to the plaintiff on cross-examination. Plaintiff had testified that as he was about to cross Maryland avenue, his attention was attracted to the Rashti car by loud blowing of its horn some distance down the street. On cross, he was asked, and denied, that two days later at the hospital he had stated that no horn was blown until the two cars collided. He admitted his signature to a paper shown him, and was then asked whether it had been presented to him by a Mr. Gohl connected with the police department. An objection to this question was sustained and exception noted. Later, on defendant Saunders' case, Gohl was called as a witness, testified to the interview at the hospital, and that he, Gohl, wrote the statement and plaintiff signed, it. The paper was then offered in evidence and excluded by the court over exception. A copy is printed in the state of the case and reads in part, "He was going to(o) fast to stop and never slowed up at corner and never blew his horn."

It was clearly error to exclude this paper. It is argued that the error was harmless, as Gohl's testimony to what plaintiff had said was already before the jury. Of course, Gohl had so testified, but defendant was entitled to have the jury inspect the paper itself with plaintiff's admitted signature—his written impeachment of his own testimony about the loud blowing of the horn; and to gauge that testimony by his own signature and not merely by the oral testimony of another contradicting his denial of having said no horn was blown. If Rashti was indeed going at top speed and blowing no horn at a built-up crossing, the fact would be of importance as tending in some measure to exonerate Saunders. Moreover, the paper was an admission by a party to the suit, and Saunders was entitled to it in that aspect as well.

Another error calling for a reversal is the action of the trial court in charging supposedly in the language of the Traffic Act of 1928, and amendment of 1931 as follows:

"I want to call your attention at this point to two or three provisions of the Traffic Act, and these deal with conditions which have some application to the allegations of negligence in this case:

"Section 2 of article 8 [Comp.St.Supp. 1930, § 179—715R(802)]: Excepting as herein otherwise provided, every driver of a vehicle shall grant the right of way at all times to any vehicle approaching from his right.

"Section 12, subdivision (a) [article 8; N.J.St.Annual 1931, § 179—715R(812)]: Vehicles approaching at intersections. The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection. When two vehicles enter an intersection at the same time, the driver of the vehicle on the left shall yield the right of way to the driver on the right. Now, if you find that there has been a violation of either one or both of those provisions of the Traffic Act, that in itself is not conclusive evidence of negligence; but if you find it to be a fact, it is a fact that you may take into consideration in determining whether or not either one or the other or both of these defendants was guilty of negligence at the time and place in question."

The accident was in 1935. Section 2 of article 8 had been expressly repealed in 1934, P.L. p. 339. In excepting, counsel pointed out that section 2 was repealed either expressly or by implication by section 12, enacted later. We incline to concur in that view, and consider that the 1934 express repealer in indicative of the legislative view on that point.

These considerations lead to a reversal of the judgment as to Saunders; and under the conditions existing in this case, we think that there should be a similar reversal as to Rashti. This was the old rule before the Practice Act of 1912, which embodied a tentative set of rules (P.L. p. 384), later adopted for the most part by the Supreme Court, one of which reads as follows (Rule 131): "In case a new trial is granted it shall only be a new trial of the question or questions with respect to which the' verdict or decision is found to be wrong, if separable." (Italics ours.) With this should be read rule 143: "In cases where there are joint appellants or joint respondents and error requiring a reversal or modification of the judgment below appears as respects one or more of said appellants or respondents, but not as respects all of them, the judgment may, in the discretion of the court, be affirmed as to the appellants or respondents not injured by such error."

The failure of the jury to return a verdict in favor of Joseph Saunders on his counterclaim against Rashti for property damage leaves that...