On appeal from a judgment of the Supreme Court, whose opinion is reported in 130 N.J.L. 347.
For the plaintiff-appellant, Hammill, Schnitzer & Reilly.
For the defendant-respondent, Carey & Lane and David A. Pindar.
The opinion of the court was delivered by
DONGES, J. Plaintiff-appellant sued to recover damages for injuries sustained in defendant-respondent's motion picture theatre by allegedly sitting on a seat that was wet with a liquid containing a chemical that burned his body and thereby inflicted injury. Plaintiff-appellant had a verdict in the Hudson County Court of Common Pleas, which, upon appeal, was reversed by the Supreme Court on the ground
that there was no proof that defendant-respondent was responsible for the presence of the fluid on the seat, except by evidence which the Supreme Court held was incompetent and was illegally admitted as part of the res gestce.
The instant case is not controlled by the rule laid down in Zappala v. Stanley Company of America, 124 N.J.L. 569. In that case it was held that a defect in a seat that caused its collapse was sufficient to put defendant to its proofs to show that it had exercised reasonable care to discover such defect. Here, the defect was not inherent but was caused by the application of a harmful substance, the presence of which may or may not have been due to a lack of reasonable care on the part of defendant.
We are then met with the question whether there was competent and admissible proof of failure of defendant to exercise reasonable care in discharging its duty to plaintiff, admittedly a patron. The testimony relied upon by plaintiff is set out in the opinion of the Supreme Court, and relates a conversation between the manager of the theatre and the usherette who showed plaintiff to the seat in question, or, perhaps more accurately stated, was a report of the usherette to the manager, in the presence and hearing of plaintiff, as to the cause of the presence of the "wetness" of the seat. The testimony is that plaintiff's pants became wet, whereupon he sought the manager and told him it was caused by the wetness of the seat. The manager, thereupon, according to plaintiff's testimony, interrogated the usherette as to how the seat became wet, and was informed, "that they had been using this fluid to get some gum off the seat." The manager later testified that a fluid was used to remove gum from seats, which fluid was supplied by the "home office." He denied that he was told that the fluid had been used on that occasion. We do not pass upon the credibility of the proffered testimony. That is for the jury, if a case for jury determination is made out. We are passing only upon the admissibility of the testimony.
The Supreme Court held that this testimony was inadmissible as part of the res gestce, because merely narrative of a past occurrence. With this we agree. There are two grounds
for the admission of such testimony, namely that the declaration was concomitant with and illustrative of the character of the event. Cf. Blackman v. West Jersey and Seashore Railroad Co., 68 N.J.L. 1. The other ground is that statements made by a general agent in the course of the business entrusted to him are admissible as evidence against his principal. In the instant case, admittedly, the manager was in the course of his duty in inquiring as to the cause of the wetness of plaintiff's clothes, which the manager in his testimony described as "about three inches, so wide, about three inches." He thereupon, plaintiff testified, asked the usherette several questions calling for an explanation of the presence of wetness on the seat and received the answers in question. Such questions and answers were in the course of official duty of the manager and called for response from the employee. The case of Raffetto v. Warner Bros. Theatre Co., 121 Id. 333, relied on ...