On appeal from judgments of the City District Court of the city of Jersey City.
For the appellant, Alan Kraut.
For the respondents, Frank A. Boehler.
Before Justices Trenchard, Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. Defendant is a common carrier of passengers. The gravamen of the action instituted by Mary H. Spalt is negligence by the operator of one of his buses, whereby she sustained personal injuries. Her husband, Donald, sued per quod. The District Court judge, sitting without a jury, found in favor of the plaintiffs; and defendant appeals from the consequent judgments.
Prior to the trial, defendant propounded certain interrogatories to plaintiffs. They were answered in due course. Inquiry was thus made for the names of the physicians claimed to have treated Mary H. for the asserted injuries; and the first insistence of that there was error in permitting the introduction, over defendant's objection, of evidence of medical aid rendered by a physician not so identified in the answer to that particular interrogatory.
The point is not well made. While a defendant in such an action may have, in the form of a bill of particulars, a statement of the expenditures made by the injured plaintiff for medical attention, and, in connection therewith, the names of the physicians who rendered the service (Wolfson v. Mills, 112 N.J.L. 1), it is the settled rule that section 140 of the Practice act of 1903 (3 Comp. Stat. 1910, p. 4097) does not
permit of the service of interrogatories, after issue joined, directed to the identification of witnesses to be called by the adversary party. The interrogatories authorized by this section may not be used to serve the office of a bill of particulars. They must needs relate to the case of the party propounding them, and cannot be used merely to pry into the case of his adversary. And an interrogatory is required to be so framed that a responsive answer would be relevant and competent evidence for the party proposing it. Watkins v. Cope, 84 N.J.L. 143. The common law, in civil cases, did not require advance notice to the adversary party of the names of witnesses to be produced. Wigm. Ev. (2 d ed.), §§ 1845, 1856, 1856c. While the modern tendency is to liberalize the practice in this respect, the ancient restriction has not been removed by our statute relating to discovery by interrogatories. They are required to be confined to matters "material to the issue." Moreover, answers to interrogatories, while introducible as evidence, are not conclusive on the party making such answers of the matters of fact embraced therein. Goodman v. Lehigh Valley Railroad Co., 82 N.J.L. 450.
The next inquiry is whether there was tangible evidence of defendant's guilt of negligent conduct proximately causing the injuries complained of. We think there was.
There was evidence tending to establish the following matters of fact: A passenger under the influence of intoxicating liquor indulged in unseemly language, and refused to obey the bus operator's command, repeated several times, to be seated. Mrs. Spalt testified that his misconduct inspired fear. The operator finally admonished him that, unless the misbehavior ceased, he would be required to eject him from the vehicle, whereupon the offender's brother, also a passenger, made known that he would resist such an effort with force. Thereupon, the driver, in a noticeably angry mood, proceeded to expel the intoxicated passenger. Mrs. Spalt gave evidence that "the driver came out of the seat, and they got into a ...