Fox v. Forty-four Cigar Co.

90 N.J.L. 483 | N.J. | 1917

The opinion of the court was delivered by

Walker, Chancellor.

This was an action at law for damages growing out of an accident to the plaintiff by collision with an automobile while he and another were riding on a motorcycle along a public road in Atlantic county. On August 16th, 1915, the plaintiff and his companion were traveling along the road on the motorcycle, when an automobile driven by a director and officer of the defendant company approached and a collision occurred, which demolished the motorcycle and injured the plaintiff.

One defence was that at the time of the accident the car was not being used for the purposes of the defendant company, and therefore the company was not liable to the plaintiff.

During the progress of the trial, for the purpose of showing that the car was being used for the purposes of the company, and for the purpose of showing an inconsistent statement made by Max Lipschutz, the assistant treasurer, certain letters to W. Prank Sooy, Esquire, a member of the bar, were offered and admitted in evidence. After the testimony had been concluded, the letters were excluded by order of the court, to which an exception was noted. The judge then directed a verdict in favor of the defendant, to which exception was taken, and the plaintiff appealed.

The defendant company in its answer admitted that on the day of the accident it was the registered owner of a certain touring car which was being driven by Max Lipschutz, who was a stockholder, director and officer of the company, but denied that the car was being driven by him as such stockholder, officer, director, agent or employe.

Max Lipschutz was called by the plaintiff and testified that he was assistant treasurer of the defendant company, whose president was his father, Benjamin Lipschutz, and whose assistant secretary was George M. Lex; that the defendant did quite extensive advertising through New Jersey by signs. He testified to the genuineness of a letter dated December 15th, 1915, as to his own and Lex’s signatures thereon. Asked what was the object of his tour through South Jersey on the day in question he answered that he had promised his sister, who was sick, a little ride and outing for her friends, and it was for that purpose alone that he took them out that afternoon. Asked whether at that time he was engaged on the business of the company, lie answered that he always looked around (meaning for and at the signs), but that the idea of taking them out that day was for pleasure alone. He could not remember whether he stated to the officers of the company that he was going out on the business of the company that day. Shown the letter again and asked to loll whether lie informed the secretary that he was out on the business of the company that day, he first answered “Yo” and then “Yes.” He afterwards said that he had not gone out to inspect the signs on that day.

W. Frank Sooy, Esquire, counselor-at-law, was called by the plaintiff and testified he was one of the firm of Bolte, Sooy & Gill; that he met Mr. Lipschutz, Sr., and Mr. Lipsclmtz, Jr., and talked the situation over with them; that he was notified b,y the defendant company that he was representing Max Lipsclmtz; that he was never formally employed by the company; that he handed the letter in question to Mr. Stern, who was associated with Messrs. Bourgeois & Coulomb, attorneys for the plaintiff, to carry out an agreement Ire had with Mr. Stern as to the form of answer that would be filed by the company, leaving out, as defendants, Max Lipschutz and his father.

Benjamin Lipsclmtz testified that he instructed his son Max on the day.in question not to take his sister out, but to attend to certain business; that the ear had been owned by the company for a couple of years and was bought to entertain customers and for other business; that it was used by Ids son, by Mr. Funk (secretary of the company) and Mr. Lex; that it was primarily bought for the purposes of the company and the benefit and convenience of its officers, and also for the purpose of taking out his sick daughter.

In view of the testimony of the Lipseirutzes—father and son—to the effect that the young man was not out on the business of the company that day, it became highly important to the plaintiff to have in evidence the letter from the assistant secretary to Mr. Sooy, in which it is slated, inter alia, that Max Lipschutz would testify at the trial that he was driving the ear, combining both business and pleasure.

The following is a copy of the letter:

“Benjamin Lipscliutz, president and treasurer; Mahlon A. Punk, secretary and sales manager; Max Lipsehutz, assistant treasurer; George M. Lex, assistant secretary.

Forty-four Cigar Company Incorporated.

Lipsqhutz’s Adlon 44 Cigars Cigars

Business established by Benjamin Lipsehutz, 1893.

Main office and factory N. E. cor. 11th and Wharton streets, Philadelphia.

P. 0. address, Southward Station.

Address all communications to company.

December 15th, 1915.

Bolte, Sooy & Gill,

21 Law Building,

Atlantic City, N. J.

.Attention of W. Prank Sooy, Esq.

Gentlemen:

The writer has ynur letter of the 13th inst., addressed to Mr. Max Lipsehutz.

The answer as filed by the insurance company is about what we expected, nevertheless, the policy that they issued to us calls for business and pleasure, and as Mr. Max Lipsehutz was an officer of the company, we feel, under the terms of the contract, that he had a perfect right to drive the car.

You can rest assured that Mr. Max Lipsehutz at the trial will testify.

Pirst—That the-company owned the car.

Second—That he was driving the car, combining both pleasure and business.

Third—That he is an officer of the cmnpany.

Tn order to fulfill your wishes in the matter, 1 am having a postscript in this letter which is signed by Mr. Max Lipschutz.

Very truly yours,

“44” Cigar Company, Inc.,

Geo. M. Lex,

L-AH Asst. Sec. P. S.

W. Frank Sooy, Esq.,

The facts as covered by Mr. Lex above will be testified to by me at the trial.

Very truly yours,

Max Lipschutz.”

The letter was offered to contradict Max Lipschutz, and as an admission by the company. Counsel for the defendant states in his brief that there is not the slightest evidence that the writer, who signed himself “assistant secretary,” was such, or that he had authority to bind the company. This is evidently a misconception on the part of the learned counsel who argued the case for Hie defendant. Max Lipschutz testified that he was the assistant treasurer, and that Mr. Lex was the company’s assistant secretary. As to whether they had authority to bind the company was, in all the circumstances of the 'case, at least, inferable. The question remains, Was the letter properly excluded? We think not. It should have been admitted and the case submitted to the jury.

Counsel for the defendant argues that the attempt to put the letter in evidence was for the purpose of impeaching the plaintiff’s witness. This is not so; the attempt was to contradict the witness. The inhibition is only that a pariy calling a witness will not be permitted afterwards to impeach his general reputation for truth or veracity by general evidence tending to show him to be unworthy of belief. Ingersoll v. English, 66 N. J. L. 463. A party to a suit is not precluded from proving the truth of any particular fact by competent testimony in direct contradiction to that to which any of the witnesses called by him may have testified. Scrieber v. Public Service Railway Co., 89 N. J. L. 183. It is always allowable to show that a witness has made other and different statements than those to which' he testifies. Vice Chancellor Pitney, in Thorp v. Leibrecht, 56 N. J. Eq. 499 (at p. 502), states that the rule forbidding a party calling a witness to offer evidence for the purpose of impeaching his general character for truth and veracity, falls far short of forbidding the party to show by any legitimate evidence that the witness has testified to what is not true in a matter material to the issue. This rule was approved by this court in Buchanan v. Buchanan, 73 Id. 544 (at p. 546). Although, in Thorp v. Deibrecht and Buchanan v. Buchanan, the witnesses called by complainants were defendants, the rule is not restricted to such witnesses—that is, witnesses who are adversary' parties, but is as broad as the statement in Buchanan v. Buchanan (at p. 546), that "the rule against impeachment denies the right to impeach the general reputation of the witness for truth, but does not deny the right to show that the whole or any part of the testimony of the witness- is untrue.” In fact, counsel for defendant concedes this in his brief, where he says: “While the law permits one who calls a witness to contradict him. it does not permit impeachment.” Impeachment, as shown, is an attack upon a witness’ general reputation for truth and veracity; and as that which was attempted in this case was not such an attack, but only a contradiction of the witness’ statement, the letter was admissible upon that score.

It is next objected on behalf of the defendant that the letter was a privileged communication by defendant addressed to the attorneys, Messrs. Bolte, Sooy & Gill. While addressed to them, it was marked -for the “Attention of W. Frank Sooy, Esq.,” who appears to have had charge of the matter, so far as his firm was concerned with it, if at all. Mr. Sooy was called as a witness by the plaintiff and asked whether he, or his firm, represented the defendant company, and answered that he would rather tell wha-t they did; that he did not know how to answer the question rightly. He also stated that he was advised that he was representing Max Lipsehutz, and that Judge Starr, he thought it was, would take care of the defendant company. As a fact, Judge Starr did represent the company, filed their answer and tried the case. It is a fact, also, that Mr. Sooy’s bill was made to Max Lipschntz and paid by him. Besides, if Messrs. Bolte, Sooy & Gill wore retained by the defendant, their representative capacity ceased on December 11th, 1915, when they received a letter from the defendant, signed by the assistant secretary, Lex, in which the company said : “Please leave the insurance company attend to looking after the “44” Cigar Company’s interests and you look after the interest of Mr. Benjamin Lipschntz and Mr. Max Lipschntz, personally, as they no doubt have arranged for.”

There is no privilege as to communications made to an attorney after his employment has terminated. 4 Wigm. Ev., § 2301; 40 Cyc. 2366”

These two letters were declarations by the company which were admissible in evidence, the one of December 11th to show that the firm of Bolte, Sooy & Gill did not represent the defendant company, at least after that date, and the one of December 15th that the company owned the car, and that Max Lipschutz was one of its officers who had a right to drive it, and was driving it on business as well as pleasure.

The remaining contention on behalf of the defendant is that the testimony failed to disclose that Max Lipschutz, the driver of the automobile at the time of the accident, was a servant of the corporation defendant, engaged on Us lousiness. Without deciding this question on the evidence which was before the court at the time of the direction of the verdict for the defendant, it is apparent, as stated, that if the letter of December 15th, 1915, had been in evidence, it might have been inferred—if the jury found the other questions raised by the pleading and evidence in favor of the plaintiff—that the defendant company was liable for the consequences of the accident which was the subject of the controversy in the suit. Mo citation of authority is necessary to support so plain a proposition.

Tito letter of December 8th, 1915, front the defendant company lo Messrs. Bolte, Sooy & Gill, which is referred to in the letter of December 11th, and which indicates that that firm represented the Lipscliutzes—father and son—and not the defendant company, was pertinent evidence and should have been admitted; not so the letter of January 25th, 1916,' written to Messrs. Bolte, Sooy & G-ill by Max Lipschutz, personalty, in which he enclosed his own check, with thanks’ to Mr. Sooy, or the firm (it not being stated which), for services rendered. This was property excluded.

The judgment of the court below must be reversed, to the end that a venire de novo, may be awarded.

For affirmance—-None.

For reversal—The Chancellor, G-arrison, Swayze, Trenci-iard, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner, JJ. 13.