Baskerville v. KofskyBaskerville v. Kofsky
Two young men on a party with their girls set out in their car one evening, Kofsky, the present defendant, driving. On reaching an intersection near the Essex county court house in Newark, they sought to beat the red light, and in doing so, on reaching the far side of the intersection, struck an old colored woman who had just steppеd off the curb. Their ear careened some distance up the street, stopping head-on into a pole, leaving the woman tying on the street, with both legs broken, the bones smashed and protruding through the flesh. Her injuries were so serious that she was confined to the hospital for a year and a half at first, then had to return for further treatment for another six months and will be barely able to walk the rest of her life. So far, unfortunately, the circumstances are not unusual.
Since the accident happened in the evening, there were none to question this falsehood, and suit was accordingly instituted in due coursе against Kalba, the supposed driver. Due to the exceptionally serious character of the injuries, the trial did not occur till after the expirаtion of two years from the date of the accident.
Since the bar of the statute had then apparently run against suing him, the real driver, Kofsky, the present defendant, in pursuance of his fraudulent agreement with Kalba to “take care of you [Kalba],” then came to court, and blandly corroborated Kalba’s testimony as to the fact that Kalba had not been the driver, and as to the fraudulent scheme they had originally concocted, and now aрparently successfully perpetrated, both on the authorities and the injured woman. But cross-examination of Kofsky at this trial developed that he had left the state shortly after the occurrence of this accident, had never returned, and was now a resident of New York. Accordingly, and in order to рrevent the effectuation of this conspiracy to obstruct justice (IV. J. 8. A. 2:24-7), so readily and purposefully admitted by both parties, plaintiff’s counsel, with the aid and consent of the trial court, served the summons in the present action against the real driver, Kofsky, at the conclusion of his testimony in the first suit, in the court roоm and shortly after court had recessed for the day. The suit against Kalba naturally terminated in finding him, the passenger, free of negligence toward the
Substantially, the present defendant, who has conspired with his passenger to defeat justice and defraud the injured public, now asks this court of justice to become an accessory to this cоnspiracy. Fortunately for the law itself, a careful consideration of the cases shows such a contention to be as foreign to the law, as it is to common sense.
The privilege of the exemption of parties and witnesses from service of process, while going to, attending, or coming from, court, stems from the common law, its basic purpose being that for which courts themselves are established, i. e., to achieve justice. A host of authorities, nоt only in this state, but in the United States at large, and in England from the earliest times, establish this general purpose of the privilege. Furthermore they show that when this purрose is absent, and the individual seeking the privilege is not acting in good faith, but eollusively, so that the court’s extension of such privilege will achieve, not justiсe, but injustice, this peculiar privilege will not be granted.
The grant of this privilege is “a rule of public policy * * * in support of the unrestricted operatiоn of our courts and the proper disposition of cases before them. * * * [It is] a practical rule of public policy directed to facilitating the administration of justice in our courts.” Michaelson v. Goldfarb, 94 N. J. L. 352; 110 Atl. Rep. 710. “The immunity extends to every person who in good faith attends as a witness.” Mulhearn v. Press Publishing Co., 53 N. J. L. 153; 21 Atl. Rep. 186. See accord, Dungan ads. Miller, 37 N. J. L. 183. So where the party seeking such immunity “has attempted to abscond from her residence and conceal hеrself and the children—and has committed two matrimonial offenses against him [her husband] and seeks to deprive him of any and all opportunity to have any redrеss in any court,” our courts have held that “the rule which she seeks to invoke
Such has beеn the established common law rule in England from the earliest times. Even as to the more stringent process of arrest, the court is equally bound to proteсt the privilege, and “to take care that the privilege against arrest is not abused or carried so far as, instead of furthering the administration of justicе, to enable a party to defy justice.” Ex parte Cobbett, 119 Eng. Rep. 1502; 7 E. & B. 955. “But here there was a manifest intention on the part of Davis to impose upon the court, and on that account he was not to be permitted to avail himself of the exemption.” Meekins v. Smith, 126 Eng. Rep. 363; 1 H. Blackstone 636. “The only question then to be considered is whether in such case the witness comes bona jide or collusively.” Walpole v. Alexander, 99 Eng. Rep. 530, Tidd’s Practice (8th ed.) 198. See to the same effect Anonymous, 88 Eng. Rep. 906; 11 Modern 79. Selby v. Hills, 131 Eng. Rep. 364; 8 Bingham 166.
Turning to the other jurisdictions in this cоuntry, we find numerous authorities gathered in an illuminating note to 19 A. L. R. 828, showing a series of classes of cases where the courts have refused to grant the privilege requested. These include cases where (1) “a full and complete adjustment of the rights of the parties cannot be had in the first action, and where full rеlief would be denied” were the second proceedings to be nullified; (2) where a tort has been committed by the person seeking the privilege while in attendance at the first proceedings; (3) where a crime has been similarly committed by him; (4) where the privilege would “enable him to escape all liability for his wrongdoing” (Mullen v. Sanborn, 29 Atl. Rep. 522 (Md.)); and (5) where the parties themselves give cause by their acts for the institution of the second proceedings against them. Nichols v. Horton, 14 Fed. Rep. 327. See, also, Lamb v. Schmitt, 285 U. S. 222; Long v. Ansell, 293 Id. 76; Central Farmers Trust v. Rorick, 57 Fed. Rep. (2d) 664; Liberty Morocco Co. v. Roth, 119 Atl. Rep. 312 (Del.).
Finally, this restriction in the grant of this privilege would seem, impliedly at least, to have been approved by our legis
That the present defendant deserves no clement consideration, on his own part, is clear. lie has defrauded both the authorities and the injured member of the public, and has violated the penal provisions of the statute. N. J. S. A. 39 :4-129. His action was сlearly a collusive attempt with that of his passenger, the previous defendant, Kalba, to defeat justice. To ask a court to aid the perрetration of a conspirac3r to defeat justice, but evidences the applicant’s own utter disregard for law and the rights of others.
Since the other grounds originally urged have been abandoned, they will not be considered, and the motion to set aside the service of the summons will accordingly be denied.
Judges Flannagan, Van Eiper and Brennan concur.