Spalt v. Eaton, 35.

• Decision Date: 26 January 1938
• Docket Number: No. 35.,35.
• Citation: 196 A. 736,119 N.J.L. 343
• Parties: SPALT v. EATON (two eases).
• Court: New Jersey Supreme Court

196 A. 736

119 N.J.L. 343

SPALT

v. EATON (two eases).

No. 35.

Court of Errors and Appeals of New Jersey.

Jan. 26, 1938.

Syllabus by the Court.

1. Under the evidence received in this case, nonsuit and direction of verdict for the defendant were rightly denied.

2. Answers to interrogatories under section 140 of the Practice Act of 1903, 3 Comp. St.1910, p. 4097, § 140, may not be used to serve the office of a bill of particulars.

3. Where certain interrogatories and the answers thereto were received and marked as evidence by consent in open court without qualification, it was too late at the end of the case to ask that they be struck out because the interrogatories and answers showed only the payment of certain alleged expenses without further proof that they were either necessary or reasonable.

Appeal from Supreme Court.

Actions by Mary H. Spalt for injuries sustained in a fracas between driver of defendant's bus in which she was riding and a disorderly passenger, whom bus driver allegedly attempted to expel, and by Donald Spalt, husband of Mary H. Spalt, for expenses paid for medical treatment and incidentals against Cornelius Eaton. From a judgment for the plaintiffs, 118 N. J.L. 327, 192 A. 576, the defendant appeals.

Affirmed.

Alan Kraut, of Jersey City, for appellant. Frank A. Boehler, of Jersey City, for respondent.

PER CURIAM.

The female plaintiff was a passenger in a bus operated by defendant through his servant. She claimed to have sustained personal injuries arising out of a fracas between the driver and a disorderly passenger and brought her suit in the district court. Her husband brought his action also for damages per quod consisting of expenses paid for medical treatment and incidentals. The wife had a verdict and judgment for $500 and the husband a judgment for $100.14. Defendant appealed and the Supreme Court affirmed, ubi supra. The matter is presented on briefs and five points are argued. The brief for the appellant is noteworthy for its disregard of paragraph 5 of rule 40 of this court, particularly the requirement that "in all cases there shall be a reference to the page and line of the record where each error may be found."

The first error claimed is denial of defendant's motion for the exclusion of the testimony of plaintiff's physician on the ground that his name had not been given in the answers to certain interrogatories. This was correctly disposed of by the Supreme Court. 118 N.J.L. 327, at page 328, 192 A. 576. This covers the first two points made in the brief.

The next point argued and numbered 6 in the brief is the denial of motions for nonsuit in both cases; and point 8 is the denial of direction of a verdict for the defendant in both cases. We consider that both motions were properly denied and there was fairly a jury question as to whether the driver of the bus in taking the action he did showed a lack of proper care for the safety of passengers.

The case...