MARVIN W. GREENBERG, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF AMY F. GREENBERG, DECEASED, DEBRA GREENBERG AND MARVIN W. GREENBERG, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. JAMES STANLEY, DEFENDANT-RESPONDENT, AND SAMUEL WALDOR, DEFENDANT-APPELLANT. JAMES STANLEY, PLAINTIFF-APPELLANT, v. SAMUEL WALDOR, DEFENDANT-RESPONDENT.
Supreme Court of New Jersey
July 30, 1959
Argued January 20, 1959—Reargued April 7, 1959
30 N.J. 485
HALL, J.
Mr. Abraham I. Harkavy argued the cause for appellant and respondent James Stanley (Messrs. Harkavy and Lieb, attorneys; Mr. Jerome S. Lieb, of counsel and on the brief).
The opinion of the court was delivered by
HALL, J. This litigation arose from a tragic accident which occurred on the sidewalk running along the west side of Elizabeth Avenue, a short distance south of the corner of Stengel Avenue, in Newark on June 26, 1956. Mrs. Debra Greenberg and a friend were wheeling their infant children in carriages on the sidewalk in a southerly direction. James Stanley was driving his automobile in the same direction near the westerly curb. He, along with other cars, had just resumed travel after stopping for a traffic light at Lehigh Avenue, one short block to the north. Immediately before coming abreast of the mothers and their baby carriages, his car suddenly veered over the curb, struck Mrs. Greenberg and the carriage from the rear, killing the child and injuring the mother, and then collided heavily with a pole within the sidewalk area. He suffered personal injuries and damage to his vehicle.
Weequahic Park extends along the east side of Elizabeth Avenue for a considerable distance in the general vicinity. An instant before the mishap Samuel Waldor drove his car out of a park exit almost opposite but slightly to the north of the intersection of Stengel Avenue with the west side of Elizabeth Avenue. He turned left across the north lanes of Elizabeth Avenue, a wide thoroughfare at that point, and proceeded to go south thereon as Stanley reached Stengel Avenue. The latter claimed that Waldor‘s entrance onto Elizabeth Avenue was made at a fast rate of speed, without obeying the stop sign at the park exit or observing the southbound traffic, and was so sweeping as to come close to the west curb, resulting in the forward progress of the Stanley car being blocked or “cut off,” or threatened so to be, and thereby unavoidably forced to swerve onto the sidewalk without any fault on his part. He also contended that Waldor‘s
The Greenbergs charged both drivers with concurrent negligence in a suit seeking recovery for the child‘s wrongful death, Mrs. Greenberg‘s injuries and her husband‘s consequential damages. In their answers each driver denied his own negligence and in effect charged the negligent conduct of the other to be the sole cause of the Greenbergs’ damages. By a separate action Stanley sued Waldor for his personal injuries and property damage. The latter‘s answer alleged contributory negligence by Stanley. No cross-claim for contingent relief under the Joint Tortfeasors Contribution Law (
At the trial neither claimed there was any contributory fault to bar the Greenbergs and it developed into a contest between the two drivers, each seeking to pin sole responsibility upon the other. The testimony by the drivers and the four witnesses who had observed all or part of the split-second events immediately preceding the tragedy was highly conflicting. Mrs. Greenberg had not seen either car before she was struck. The evidence is thoroughly analyzed in the opinion of the Appellate Division shortly to be referred to and all of it need not be repeated. The proofs were concededly such that it was open to the jury to find either
The verdict in the Greenberg suit absolved Stanley by a finding of no cause of action in his favor and assessed damages against Waldor alone of $10,000 on the wrongful death claim, $27,500 in favor of Mrs. Greenberg and $1,000 for her husband. Stanley was awarded $10,000 in his action against Waldor. The latter‘s motion for a new trial upon all issues as to all parties in both suits, on which it was claimed the verdicts were against the weight of the evidence both as to liability and damages and should also be set aside for certain trial errors, was denied except that the death claim verdict was reduced to $5,000 and that in favor of Stanley to $7,500. In the Greenberg case Waldor appealed to the Appellate Division from “the whole of the final judgment * * * in favor of the plaintiffs and against the defendant Samuel Waldor,” serving the notice of appeal on the Greenbergs and Stanley. The administrator ad prosequendum cross-appealed against Waldor from the reduction of the verdict on the claim for wrongful death. There was no appeal by the Greenbergs from the no cause verdict on their claims against Stanley. Waldor also appealed from Stanley‘s judgment against him. No review was sought by Stanley of the reduction of his damage award.
The Appellate Division, by its opinion reported at 51 N. J. Super. 90, affirmed the judgment of the Greenberg plaintiffs against Waldor alone, including the death claim as reduced, but reversed that in favor of Stanley against Waldor and awarded a new trial in that suit. We granted Waldor‘s petition for certification, notice of which was again given to the attorneys for Stanley as well as for the Greenberg‘s, “to review the final judgment of the Appellate Division entered in favor of the plaintiffs Marvin W. Greenberg, et al. in the above entitled actions * * *,” and Stanley‘s similar application to review the appellate judgment in his action against Waldor, notice of which was likewise given to all other counsel. 28 N. J. 38. No further review was sought
Waldor urged numerous alleged trial errors in the Appellate Division, all but one of which were found to be without merit. Most of the rejected contentions are resubmitted here. After careful consideration we are satisfied they were properly disposed of below in parts II, III and V of the opinion and no additional comment is required.
The remaining issue before us arises out of the result reached by the Appellate Division reversing Stanley‘s money judgment but denying relief to Waldor with respect to the Greenberg verdicts. The court found prejudice to Waldor sufficient to infect Stanley‘s award by reason of the persistent efforts of the latter‘s counsel to place inadmissible evidence before the jury and the denial of Waldor‘s consequent motion for a mistrial, but determined that it did not extend to the Greenberg verdicts against Waldor. No express mention was made in the opinion of the latter‘s contention that the no cause result in Stanley‘s favor in the Greenberg suit should also be set aside on the theory that substantial justice required a new trial as to all issues and all parties. The court rather parenthetically observed that no question had been raised as to the effect of its determination “upon any right of contribution of Waldor as against Stanley in respect to the Greenberg judgments” and so the matter had not been considered and no opinion was implied with respect thereto. 51 N. J. Super. at pages 104-105. Waldor‘s petition for a rehearing, based primarily on the questions just mentioned, was denied, as was a petition by Stanley seeking like relief.
Both men say that the conclusion of the Appellate Division is erroneous. Waldor urges that it does not go far enough because the situation requires a reversal and new trial of the entire Greenberg case as well, both on the theory of substantial justice and because otherwise the Greenberg verdicts may preclude a claim of contribution by him against Stanley if the ordered retrial of the latter‘s suit results in no cause for action. Stanley contends, and here his appeal
The problems thus posed may well be considered from three aspects. First, was the evidence sought to be introduced by Stanley admissible and, if not, did such substantial prejudice to Waldor result from the incident as to infect any of the verdicts? Second, if the latter be so, should or must such infection be limited to the Stanley-Waldor suit? Third, if it cannot be so confined, what should the effect be on the Greenbergs?
These questions must be considered primarily in the light of the situation in the case as it was when the evidence was offered, subject, of course, to anything that might have happened in the trial subsequently which could be said to have cured any error that occurred. The Greenbergs had a well-nigh perfect case of liability against some one and apparently were not greatly concerned, from the standpoint of collectability of damages awarded, with obtaining verdicts against both drivers. Their counsel adopted the common trial tactic in such situations of calling not only certain of the eye-witnesses, but both driver-defendants, as plaintiffs’ witnesses, questioning each as to his version of the accident. The contest being essentially between the drivers, each sought through his own testimony to exculpate himself from blame
At the time Stanley had not been entirely successful in establishing his “cut-off” theory. It was, of course, most desirable for his counsel to present evidence to support it not only by his client‘s own testimony but, to be more persuasive to the jury, by the corroborative evidence of other witnesses and inferences and admissions, if possible, from Waldor‘s own testimony. Mrs. Zucker, Mrs. Greenberg‘s walking companion, had been the first witness called by plaintiffs. She testified that the Waldor car came nearer the curb than the center of the street, leaving just enough room for another car between it and the curb. She had had only a momentary glimpse of the Stanley car before it catapulted into Mrs. Greenberg, the child and the pole. She said both cars were going very fast and from the noise she heard it had seemed to her “as if the two cars had scraped.”
The next witness was Harry Handelman, who had been sitting in his car parked on the east side of Elizabeth Avenue just south of the park exit, about opposite the acci-
Stanley himself was the next witness called by the Greenbergs. His testimony of what happened was, as detailed in the Appellate Division opinion, somewhat equivocal. He said he had reached or was in the Stengel Avenue intersection when he first saw Waldor coming out of the park exit “very fast” and making a left turn, but later testified on cross-examination by his own attorney that it appeared as though Waldor would cut across in front of him rather than proceed south on Elizabeth Avenue. He further said he then
The Greenbergs then called Waldor as their witness. He testified that he had stopped and looked at the park exit, saw Stanley‘s car and another halted for the traffic light at Lehigh Avenue, started out slowly on his left turn and had straightened out, going about 20 miles an hour, with adequate room for another automobile between him and the curb, when suddenly he was attracted by the screeching of brakes, looked to his right rear and saw Stanley coming up very fast and close along that side. The front end of the latter‘s car came about even with Waldor‘s driver‘s seat. He said he kept going and then Stanley jumped the curb and hit the pole with a terrific impact. He was positive the cars had not touched. He pulled to the curb, stopped and seeing a serious situation, drove at once two blocks to a store and called the police. He then walked back to the scene, where people had gathered. All of this testimony had been developed in direct examination by the attorney for the Greenbergs and uncompleted cross-examination on
Then came the series of questions on cross-examination by Stanley which culminated in the motion for mistrial. It was evident at this point that Stanley‘s “cut-off” theory was by no means completely supported. His own testimony was at least in part susceptible of a contrary inference, and that of Waldor and Handelman was not clear-cut. The state of the proof then was that, while Waldor might well be found to be negligent, a jury could also very properly conclude that Stanley was guilty of concurrent fault. Stanley had taken Waldor‘s deposition in pretrial discovery proceedings, where the interrogation is not limited to evidence admissible at trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence (
The first question is whether this evidence was admissible. We agree completely with the Appellate Division that the trial court correctly ruled it was not. That it was contained in the deposition of a party does not automatically make it admissible. It is elementary that any part of a deposition may be used at a trial only “so far as admissible under the rules of evidence.”
Obviously, the circumstances here did not meet this preliminary requirement. The statement or statements were not shown to be anything more than rumors voiced by unidentified people standing around the scene of a tragedy. They were not made to Waldor for, at that moment, no one there knew he was the driver of the green car. He was
Next must be considered whether the offer of the inadmissible evidence occurred in such a fashion as to result in prejudice to Waldor. Here we assume that Stanley‘s counsel in good faith, though mistakenly, believed the statement to be evidential. At the same time it must also be realized, and it is made plain by the previously adverted to indecisive state of the proofs to support Stanley‘s theory at that stage of the case (which in fact continued to the end of the trial), that it was of very considerable importance to his counsel to put this statement about a “cut-off” before the jury. Such a powerful observation, made minutes after the occurrence by some person or persons, whom a lay jury, knowing full well what “cut-off” connotated, might well assume witnessed the accident and spoke spontaneously, could well swing the balance in Stanley‘s favor. His experienced counsel undoubtedly fully appreciated this and he was probably as much, if not more, interested in having the jury hear the observation as the fact that Waldor made no reply. While the jury never heard about the latter, the bystanders’ statement about the “cut-off” was given to the jury twice by incorporation in his questions, even though objections thereto were sustained. The unreliability of the statement is patent and demonstrates the resulting unfairness when permitted to get into the case. Stanley was still
Analysis of the series of questions propounded on behalf of Stanley makes clear the vice of the incident. Unfortunately, in the beginning counsel for Waldor, who must have known what was coming since he had participated in the deposition, was not explicit in his objections, nor was Stanley‘s counsel helpful to the court in making known the purpose of the line of interrogation, so that the court‘s reasons for the rulings were initially not clear to the latter. Such, however, does not sanction overzealous persistence after objections to questions have been continually sustained. In fact, Stanley‘s present brief admits “the better course might have been to save the objection to the trial court‘s ruling for appeal. * * *” Waldor first testified that, on his return to the scene, he heard people talking about a green car. Objections were sustained to the next three questions asking whether he told any of these people that he was the owner of the green car and what they were saying about it, for the reason that a foundation had not been laid. Then came several questions which elicited the information that the comment was being generally made, in Waldor‘s hearing, by pedestrian bystanders and not by any one in authority, thereby establishing the inapplicability of the “admission by silence” rule. The next query: “What did you hear that someone say?” was objected to and the objection sustained without comment. That should have ended the matter and if counsel had abided by the court‘s ruling as was his duty, there would have been no harm done. But he immediately then read from the deposition containing the remarks about the “cut-off” as previously quoted, asking if the witness had
We are satisfied, as was the Appellate Division, that substantial, uneradicated prejudice to Waldor resulted from the incident, but we are equally convinced, contrary to the view of that court, that it infected not only Stanley‘s recovery in his suit against Waldor but also the verdict against Waldor in the Greenberg case. We say the error was uneradicated because there is no merit in Stanley‘s argument that any harm was cured by subsequent reference to the comments on Waldor‘s further examination by his own counsel at a later stage in the trial. The questioning at that time was in an entirely different context and the spectators’ comments were not repeated, although Stanley‘s counsel tried to bring them in again but was prevented following objection.
Moreover, as has been intimated, what happened on Waldor‘s cross-examination is the type of prejudicial occurrence which must be recognized as most likely not to be susceptible of cure or practical eradication from the minds of lay jurors. The nature of the bystanders’ comments under
We are unable to agree with the reasoning and conclusion of the Appellate Division that, while the improper cross-examination was so prejudicial to Waldor on the issue of Stanley‘s contributory negligence in his suit against Waldor as to require a new trial of that action, there was no appreciable degree of probability that it affected the Greenberg verdict against Waldor. This conclusion was rested on the fact that there was sufficient other evidence of Waldor‘s negligence to sustain that result against him alone. But, in the very nature of the situation present, if Stanley were contributorily negligent with respect to his claim against Waldor, he would be guilty of primary negligence in the Greenberg suit against both. So we fail to see any basis for the distinction that the prejudice would affect the jury and was harmful in the one case but was harmless in the other. It cannot be said that the jury could not have given any weight to the bystanders’ comments on the question of primary negligence to the Greenbergs. In a case such as this where the improper cross-examination seriously and strikingly tended to inculpate one defendant and exculpate the other, the error cannot be found harmless on any aspect and, in the interests of substantial justice (
However, both Stanley and the Greenbergs argue that the denial of a motion for mistrial rests in the discretion of the trial court and should not be disturbed by an appellate
It has, of course, often been said that the denial of a mistrial will not be found erroneous on appeal unless there is a clear showing of mistaken use of discretion by the trial court. Carter v. Public Service Coordinated Transport, 47 N. J. Super. 379, 389 (App. Div. 1957); Budden v. Goldstein, 43 N. J. Super. 340, 344 (App. Div. 1957); Schuttler v. Reinhardt, 17 N. J. Super. 480, 484-486 (App. Div. 1952). What is really meant is that such matters depend very largely on the “feel” of the case which the trial judge has at the time and his first-hand judgment in denying such a motion will not be reversed by a reviewing tribunal on a cold record, even if the appellate court might have acted otherwise if sitting at the trial, unless it so clearly appears from the printed page alone that the happening on which the motion was based was so striking that because of it one of the parties could not thereafter have a fair trial. Wright v. Bernstein, 23 N. J. 284, 296 (1957); Schuttler v. Reinhardt, supra (17 N. J. Super. at pages 484-486); Patterson v. Surpless, 107 N. J. L. 305 (E. & A. 1930). Even in most situations of such an exceptional occurrence, as pointed out in the cited cases, the harmful effect can be sufficiently eradicated by immediate and strong admonitory instructions to the jury, which it is the obligation of the judge to give on his own initiative, so as to make a mistrial unnecessary. See also Paxton v. Misiuk, 54 N. J. Super. 15 (App. Div. 1959); Purpura v. Public Service Electric & Gas Co., 53 N. J. Super. 475 (App. Div. 1959); Haid v. Loderstedt, 45 N. J. Super. 547 (App. Div. 1957). There are cases, however, when the prejudicial effect of the misconduct is so damaging that no instruction of the court can counteract its effect. Cf. State v. D‘Ippolito, 19 N. J. 540, 548 (1955). We are not called upon to say whether this is such a case since no cautionary charge was given by the trial judge at any time. It is clear to us beyond any doubt, therefore, that the failure to grant Waldor‘s motion for a mistrial under all the circumstances was erroneous, and substantial justice now requires the Greenberg judgment against him, as well as Stanley‘s damage award in his suit, to be set aside but on conditions to be mentioned.
What should be the effect of this conclusion on Stanley‘s no cause verdict in the Greenberg suit? Waldor urges, as he did both in the Appellate Division and on motion for new trial in the Law Division, that substantial justice requires a new trial as to all parties on all issues, while Stanley takes the position that Waldor has no standing to attack the exoneration in any way. We think Waldor‘s position is well taken, with reservations, under the special circumstances here present. In view of the fact that he has not attempted to appeal from Stanley‘s judgment against the Greenbergs entered on that verdict, we are not called upon to consider his further contention that a co-defendant has such a right in this State since the adoption and by reason of the incidents of the Joint Tortfeasors Contribution Law (
Waldor‘s initial argument rests on the well settled discretionary power of an appellate court in this State to order a reversal as to all or less than all defendants where harmful error has been committed against less than all, dependent on fundamental justice under the peculiar facts and circumstances of the case. Ferry v. Settle, 6 N. J. 262 (1951). Speaking broadly, there has been no hesitation to
As in Ferry v. Settle, the question of liability “arose out of an intermingled group of facts and circumstances pre-
There remains the question of injustice to the Greenbergs if the new trial encompasses all issues. They are not only the innocent victims of the tragedy absolutely entitled to recover their damages from one or both of the defendants and satisfied with their judgment against Waldor alone, but they are also similar victims of the prejudicial cross-examination with which they had nothing to do. The amounts of their damages have been fully and fairly tried and reviewed at the trial and appellate levels with the propriety thereof finally settled. They should not be required to prove them again for redetermination by another jury. No prejudice can result to either defendant if that issue is not relitigated. Moreover, since both defendants concede that a jury verdict of no cause for action against both of them could not be sustained, the Greenbergs should not be put to the risk of another jury inexplicably reaching that result, thereby re-
This court has ample power to so direct.
The judgment of the Appellate Division affirming the judgment of the Greenberg plaintiffs against Waldor is reversed, the judgment in the trial court in favor of Stanley in the same suit is set aside, the judgment of the Appellate Division reversing Stanley‘s judgment against Waldor is affirmed and the consolidated action is remanded to the Law Division for a new trial to the extent and under the conditions herein ordered. Costs are allowed in this court and in the Appellate Division to the Greenbergs as against Stanley only. Costs of the Greenbergs at the trial level, with respect to both the original trial and the new trial here ordered, shall be awarded against the party or parties found liable to them on the new trial. All costs as between Waldor and Stanley shall abide the event of the new trial.
WEINTRAUB, C. J. (dissenting). The factual thesis against Waldor was that he, turning left into Elizabeth Avenue, crossed the path of Stanley‘s car. In the parlance of the road, it was claimed that Waldor “cut off” Stanley. There was ample evidence to support that theme.
Waldor admitted a left turn and said the cars came within some two feet of each other. Paint found on the Waldor car was identified with the Stanley vehicle, thus indicating actual contact. Waldor said he stopped immediately, drove one block to a store to telephone the police, parking the car around the corner, and then returned to the scene on foot. He talked with policemen who had arrived by car. He then went to the Beth Israel Hospital, his intended destination. Some 15 or 20 minutes after the accident the police informed him at the hospital that a baby had been killed in the accident. According to Waldor, he insisted his car be inspected at once and it was.
Waldor denied any involvement and yet admitted that on his own he spoke to the police and later asked them to inspect his car. In these circumstances it was appropriate to explore his motivation. Indeed, one would expect Waldor himself to offer an explanation to avoid an inference that he was conscious of culpability. Later in the case, when called as a witness in his own behalf, Waldor did undertake to explain in terms of some statement he heard at the scene that suggested he might have been at fault. It may well be that the cross-examination in question was proper to explore a possible consciousness of responsibility. It, however, was not pressed on that basis, and for present purposes I will assume it could not have been.
The cross-examination was conducted on the thesis that Waldor failed to deny a statement importing that he had cut off Stanley and hence an admission to that effect should be inferred. I agree he was under no duty to speak in response to a statement made by some unknown person and not addressed accusingly at him. Moreover, Waldor did deny involvement to the police, a fact which adequately dispelled acquiescence by silence. Nonetheless, I find no basis for disturbing the judgments entered in the trial court.
The testimony sought to be elicited did not come in. Nor did the suggestion of a cut-off introduce something foreign to the case; it was already in the record through other witnesses. It seems most unlikely that the jury would have given additional weight to the rumor, even if it disregarded the trial court‘s ruling, since the rumor would readily be attributable to one of the witnesses who appeared at the trial. Moreover, Waldor later testified substantially
It should be stressed that the issue is not whether improper testimony was admitted with prejudicial effect; the objection was sustained. Rather, the question is whether the trial court misused its discretion in denying a motion for a mistrial based upon an effort to adduce testimony. The trial consumed some five or six days. The trial judge had the feel of the case. He was best situated to determine the impact of the incident. An appellate court should not lightly quarrel with an exercise of discretion in such circumstances.
The difficulty arose from a failure of communication. Counsel for Waldor objected without specifying his grounds. Counsel for Stanley said he thought “it is material,” to which the trial court replied, “I don‘t think a foundation has been laid.” Later counsel for Stanley stated his thesis that a person “by his silence” may be deemed to subscribe to an unfavorable statement, to which the trial court again said, “You haven‘t laid a foundation to support that at all.” Counsel thought the court meant he had not proved that Waldor heard the statement, although in fact Waldor had already testified that he had. Counsel was pressing to show that Waldor heard the remark when the motion for a mistrial was made. In the argument which followed, counsel for Stanley explained what he understood the court meant by lack of foundation. The record then reads:
“The Court: I am frank to say that I haven‘t understood that this witness heard the statement.
Mr. Harkavy: It is in the record. I asked him if he was close enough to hear it. He said yes.
The Court: I said the foundation wasn‘t laid. When I said the foundation wasn‘t laid for competency, I have in mind my recollection of the testimony that somebody simply in the crowd made a statement.
Mr. Harkavy: One of the first questions I asked was whether he heard it said and he said yes. I think there is another time when he said he was close enough and he said one person said it.
The Court: My impression was that you were addressing a question to him which was founded on something that someone else said. * * *”
“Mr. Harkavy: Before the jury comes in, sir, in only the utmost desire to facilitate the situation, may I ask your Honor‘s reason?
The Court: It is not competent.
Mr. Harkavy: May I ask if your Honor feels that I haven‘t laid a foundation?
The Court: You haven‘t laid a sufficient foundation to make it competent.
Mr. Harkavy: Is that in line with what you said earlier that you didn‘t recall any evidence?
The Court: Yes, in addition I notice that the person who made the statement, the purported statement, has not been identified who would know the fact with the result that this defendant would be called upon to respond to the statement.”
I find no basis for suggesting that counsel acted other than in good faith, seeking to meet what he thought was the basis for the ruling.
I am convinced that this incident, of a minor, run-of-the-mill character, has been isolated and magnified by the special attention accorded it on appeal.
I would affirm the judgments as entered in the trial court. Hence I would affirm the judgment of the Appellate Division in the case of the Greenbergs against Waldor and would reverse it in the case of Stanley against Waldor.
JACOBS, J., joins in this dissenting opinion.
For reversal in part and affirmance in part—Justices BURLING, FRANCIS, PROCTOR and HALL—4.
For affirmance in part and reversal in part—Chief Justice WEINTRAUB and Justice JACOBS—2.