Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Maisto v. Maisto

Decided: November 3, 1939.

LUIGI MAISTO AND MARIA MAISTO, PLAINTIFFS-APPELLEES,
v.
NICHOLAS MAISTO AND GIUSEPPE MAISTO, DEFENDANTS-APPELLANTS



On appeal from the Mercer County Court of Common Pleas.

For the plaintiffs-appellees, Mario H. Volpe (Joseph D. Kaplan, of counsel).

For the defendants-appellants, George Pellettieri.

Before Brogan, Chief Justice, and Justices Donges and Porter.

Brogan

BROGAN, CHIEF JUSTICE. This is an appeal by the defendants from a judgment in favor of the plaintiffs for $1,500 and costs. The jury found this sum to be the reasonable value of the services rendered by the plaintiff, Dolores Maisto, for a period of about three years work in the bake shop of the defendants, during part of which time she was a minor.

Appellants argue their grounds of appeal -- twelve in all -- under seven points which will be discussed in the order in which they were argued and briefed.

The first point alleges error in the refusal of the trial court to permit defendants' counsel to cross-examine Luigi Maisto, the father of Dolores, during his direct examination, concerning his qualifications to testify as to the reasonable value of his daughter's services. This stated ground of appeal is not available to the appellants because no exception was entered to the court's denial of the right to cross-examine. Booth v. Keegan, 108 N.J.L. 538.

The second ground of appeal charges that the court erred in permitting the same witness to testify as to the reasonable value of the services in question. The objection is that the witness had not been properly qualified. Now whether a witness is qualified to testify is a question for the court to determine as a fact (Electric Park Co. v. Psichos, 83 N.J.L. 262) and on appeal a judgment will not be reversed on assigned error of this character unless there was a clear abuse of discretion by the trial court in rejecting or allowing such testimony, i.e., if there was no evidence to support the finding that the witness had the necessary experience, and therefore the court's error in receiving the evidence was palpable and plain. But here we think the witness manifested almost to the point of demonstration his fitness to testify to the subjectmatter in hand. He had been engaged in the bakery business for more than thirty years, was familiar with all phases of it, and well knew the type of work his daughter was doing,

namely, selling bread and "loading carriers." There was no error in receiving the testimony.

Third: The court is said to have erred in sustaining an objection to the following question asked of the same witness: "And last year, did you know what the reasonable value of her services was at that time?" The question was asked on cross-examination and the objection was on the ground of immateriality. To understand the situation before the court it is necessary to state its background. The case had been tried before, resulting in a disagreement by the jury.

Now returning to the present case, the witness was under cross-examination on the fact that at the preceding trial he had not testified to the reasonable value of his daughter's services. He virtually admitted that fact, saying that he did not remember that he had so testified and adding that he did not think he did. Then followed the question with which we are concerned as to whether last year he knew what the reasonable value of his daughter's services was. In the form in which the question was put it seems to us to have been entirely immaterial. The question under consideration was not directed at his credibility. If he had testified differently at the last trial interrogation along this line would have been material and proper to attack his credibility, but in the form in which the question was put we consider that the court was not in error, strictly speaking, in excluding the question.

Fourth: This point alleges error in the court's rulings on evidence, which were made to confine the answers of Joseph Maisto, a defendant's witness, to the sphere of responsiveness. Under this heading three of the court's rulings are challenged. The court's ruling on the first question is not available as error because no exception was entered to the ruling. As to the second, a question on cross-examination to this witness was: "You were interested in the accounts of the company, were you not?" to which reply was made, "I was not interested because I stopped working --" and at this point cross-examining counsel said, "I do not want the reason." Appellants' counsel ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.