On appeal from the Union County Court of Common Pleas.
For the defendants-appellants, Henry J. Fryling, Henry J. Sorenson and William H. Speer.
For the plaintiff-appellee, John W. Lyness and Edmund A. Hayes.
Before Brogan, Chief Justice, and Justices Bodine and Heher.
[120 NJL Page 385] BODINE, J. The plaintiff, a Western Union messenger boy, on the evening of December 3d, 1936, was riding his bicycle on West Front street, Plaintield, on his way to Dunellen. The boy claimed to have been struck by the defendant's bus. Some of the witnesses for the defendant testified that the boy was hitching on to the right side of the bus at about the middle, when he fell and suffered serious injury. The principal ground urged for reversal is that the trial judge improperly instructed the jury as follows: "If you find that any witness has varied in his or her testimony and has told conflicting stories, you can, if you see fit, discard that person's testimony as unworthy of belief, either because of the lack of veracity or the lack of ability to know what the truth really
was, or whatever you may decide, and discard that altogether, but it is entirely for you to say."
At the close of the charge, counsel for defendant addressed the court as follows: "I take exception to that portion of your honor's charge wherein you charged that if the jury found that any witness varies in his testimony, you can, if you see fit, discard the testimony of that witness and throw it out entirely."
It was said in Lyon v. Fabricant, 113 N.J.L. 62 (at p. 63): "At the conclusion of the charge, and usually after the jury have gone out, although the practice varies locally, counsel dissenting from any of the instructions given to the jury formulates and states his exceptions thereto, reproducing as nearly as may be the language excepted to. This, as has many times been pointed out, is to notify the trial judge that his ruling is to be made a ground of appeal, and so that he may revise it if desired. See, for example, Kargman v. Carlo, 85 N.J.L. 632, 636."
It would, therefore, seem if legal error was committed by the trial court in the instructions given that an exception was properly taken. The charge in effect was, that if any witness had varied his testimony and told conflicting stories the jury could disregard that person's testimony as unworthy of belief. This is not the true rule of law. It is not every variation and every conflict that entitles the jury to reject the whole testimony.
"The maxim falsus in uno, falsus in omnibus, is not a mandatory rule of evidence, but is rather a permissible inference that the jury may or may not draw when convinced that an attempt has been made to mislead them in some material respect. Addis v. Rushmore, 74 N.J.L. 650. It is a rule by which the probative force of testimony may be weighed, and which rule does not rise to the degree of an inflexible legal principle to be applied in all cases. It is to be observed that it is in this light that the trial judge left it to the jury to determine to what extent it would accept or reject any or all of the testimony of the defendant, if the jury believed he
had testified willfully false, in relation to the material fact -- the speed of the car." State v. Dugan, 84 Id. 603, 606; affirmed, 85 Id. 730.
"The cases seem to be in harmony on the point that the application of the rule 'falsus in uno, falsus in omnibus' can only be properly invoked when the false testimony or statement is willfully or knowingly or intentionally given or made concerning a material fact in the case; and that an instruction to a jury that if a witness has made a false statement or testified falsely, without qualifying it by willfully, knowingly or intentionally relating to a material fact in the case, the jury may reject all or any portion of the testimony given by such witness, is erroneous. Ducharme v. Holyoke Street Railway Co., 203 Mass. 384; 89 N.E. Rep. 561; Chicago and S.L. Railroad Co. v. Kline, 77 Id. 229; Pauton v. People, 114 Ill. 505; 2 N.E. Rep. 411; Moett v. ...