Troast v. LascariTroast v. Lascari
Plаintiff Peter R. Troast instituted this action to recover the reasonable value of engineering and surveying services which he rendered at the request of defendant Anthony Lascari. Plaintiff valued his services at $1,650. Defendant denied having engaged the plaintiff for any purpose other than the making of one survey and three plot plans. The issues thus posed for trial before the Bergen County Court, Law Division, were thе extent of the work plaintiff was requested to do and the reasonable value thereof. After a lengthy trial, the jury deliberated almost two hours before returning a unanimous verdict for plaintiff for $1,550. His motion fоr a new trial was denied, and defendant prosecutes this appeal.
Plaintiff, a professional engineer and land surveyor, testified that in October 1957 the defendant came to his home, said that he was in the process of buying land in the Borough of Little Ferry, and requested plaintiff to make a survey of the property and to “lay it out in various plots of land or
In January 1958 defendant instructed plaintiff to discontinue the work, bеcause a change in zone from residential to industrial use was imminent. Although the change never materialized, defendant did not order plaintiff to continue with the work but engaged another engineer, Mr. Florio C. Job, Borough Engineer of Little Ferry and other municipalities. Plaintiff subsequently rendered a bill for $1,650.
Defendant brings this appeal, asserting that certain errors were committed at the trial resulting in a denial of substantial justice and therefore warranting a new trial. Defendant does not dispute being liable to plaintiff for some amount and does not contend that the verdict of $1,550 was excessive or the result of compromise.
It is first urged that the trial court permitted plaintiff‘s counsel to ask an improper question of the defendant on cross-examination. Defendant was asked:
“Q. Mr. Lascari, isn‘t it a fact that you went аnd engaged Mr. Job to do the sub-division work on this property because you were told by someone that unless you engaged Mr. Job, you would never get sub-division approval?
Mr. Palladino: I object to this question аs being irrelevant and immaterial to the issues in this matter.
The Court: I will allow it.
A. No.
Q. It is not a fact? A. No.”
Defendant asserts the question implied that Job, the expert witness later called by defendant, was guilty of unscrupulous
The character of a party in a civil cause is generally inadmissible as substantive proof. Rittenhoffer v. Cutter, 83 N.J.L. 613, 615 (E. & A. 1912); Gouse v. Rowe, 1 N.J. Misc. 611 (Sup. Ct. 1923); 1 Wigmore, Evidence, § 64 (3d ed. 1940); 32 C.J.S. Evidence § 423 (1942). Cf. State v. Arbus, 54 N.J. Super. 76, 82, 83 (App. Div. 1959). But we do not agree that the inquiry had the effect of blackening defendant‘s character. In that regard it is reasonably subject to the imputation that defendant yielded to official coercion involuntarily. Moreover, defendant‘s counsel did not object to the question as prejudicial but only as being “irrelevant and immaterial” to the issues framed. Significant it is, too, that the defendant denied that he hired Job because “someone” had told him such would be necessary to obtain municipal approval. But more important, the question did have relevance to the issues in the case. Plaintiff contendеd he had been hired to draw all the maps required for the subdivision, and not just the one survey and three plot plans. Defendant offered no explanation for making a change in engineers. Defendant рreviously testified that when he had engaged plaintiff, he had no intention to have any other surveyor draw up the subdivision plans. A showing on cross-examination that he discharged plaintiff prematurely and for rеasons other than any inefficiency in the doing of the work would have tended to support plaintiff‘s factual version as to the extent of the work originally ordered by the defendant, and therefore thе inquiry was relevant.
Our courts have justifiably been concerned with prejudicial questions asked by counsel during trial where the subject matter was clearly irrelevant to the issues, e.g., Dudek v. Janesko, 118 N.J.L. 420 (Sup. Ct. 1937), affirmed per
It is argued that counsel should not be permitted, on cross-examination, and in the guise of attempting to impeach the witness, to ask questions of this nature unless hе has evidence factually justifying the imputation conveyed by the question. We agree to this extent: Questions impeaching the character of a witness by innuendo or insinuation, and not otherwise relevant to the actual inquiry, should not be asked unless the cross-examiner has reasonable grounds for believing that the implication contained therein is well founded. See McCormick, Evidence (1954), § 41, p. 86; 3 Wigmore, Evidence (3d ed. 1940), § 780(c), p. 137, and § 983. Cf. State v. Steensen, 35 N.J. Super. 103, 108-09 (App. Div. 1955). But defendant is in no position to assеrt that plaintiff‘s counsel did not have reason to suppose that defendant was in fact required to engage Job in order to obtain subdivision approval. As stated, defendant‘s counsel did not object to the question as containing a factually insupportable implication, and his adversary was thus not apprised of any necessity to represent to the court that there existed a foundation for the question. Any impropriety in the cross-examination was not made the basis of a specific objection, and the allowance of the question and answer, therefore, is not legal error on which to support a reversal. Quellmalz v. Atlantic Coast Electric Ry. Co., 94 N.J.L. 474, 475 (E. & A. 1920); Iverson v. Prudential Ins. Co., 126 N.J.L. 280, 282 (E. & A. 1941); 3 Am. Jur., Appeal and Error, §§ 346, 347 (1936).
Nor are we persuaded that the question damaged Job‘s character or value as a witness. The verdict awarded plaintiff
The second assignment of error relates to the trial court‘s excluding from evidence a fee schedule promulgated by the Bеrgen-Passaic Association of Professional Engineers and Land Surveyors and sought to be introduced by the defendant as bearing upon the reasonableness of plaintiff‘s charges. The court‘s ruling that the Assоciation‘s schedule was not admissible was based on testimony that the minimum charges therein set forth are not binding on engineers and that therefore “the real testimony * * * would be this man‘s opinion rather than what some committee said that they would like to see. * * * Now, what he happens to know, that is another thing.” Job subsequently testified in detail, giving his personal opinion of the value of plaintiff‘s services.
Defendant asserts this ruling was “directly contra” to the holding of Hankin v. Hamilton Tp. Bd. of Education, 47 N.J. Super. 70, 81 (App. Div.), certification denied 25 N.J. 489 (1957). In that casе, a fee schedule of the American Institute of Architects had been admitted into evidence on the question of the reasonableness of architects’ fees in connection with certain sсhool buildings. We found the practice unobjectionable, pointing out that
In the instant case the plaintiff was free to charge more than the fee schedule indicated. If, on the other hand, the trial judge may have erred in excluding this proof, we сonclude that no harm was thereby visited upon defendant‘s case. Job testified fully as to the reasonable value of plaintiff‘s
Defendant next refers us to numerous incidents occurring during the trial, any one of which conсededly would not warrant a new trial but which, in cumulative effect, are said to have resulted in the denial of a fair trial. Improper remarks of plaintiff‘s attorney are noted, and the trial judge‘s allegеdly extensive role in participating in the examination of witnesses is criticized. We have carefully reviewed the record and are well satisfied that none of the cited incidents was prejudiciаl to the degree of affecting any substantial right of the defendant. It has been repeatedly recognized that the trial judge may, within the bounds of judicial propriety, participate in the trial by the interrogation of a witness. Lawton v. Virginia Stevedoring Co., 50 N.J. Super. 564, 580 (App. Div. 1958). Defense counsel‘s cross-examination of the plaintiff was tedious and at times devoid of probative value, and it was proper for the trial judge to intervene as he did.
Lastly, defendant complains of that portion of the charge to the jury wherein the trial judge said that defendant would be liable if he accepted the benefit of plaintiff‘s work, even though he did not order it. It is argued that this instruction is not an accurate statement of the law, in that the acceptance of the work must be under such circumstances as would negate the idea that the services were intended to be gratuitous. Shapiro v. Solomon, 42 N.J. Super. 377, 383 (App. Div. 1956). While noting that there was no evidence from which the jury might have inferred that the services were gratuitous, we are precluded from considering the point as a proper basis for reversal, counsel not having objected to the charge at the trial.
Judgment affirmed.