On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
[3 NJ Page 211] Assuming it was prejudicial, did the trial court err in denying the appellants' motion to strike the opinion testimony of the respondents' expert upon the
ground that it was based partly upon hearsay? This is the only question presented by the appeal, which comes here on our own certification.
A jury in the Superior Court, Law Division, Bergen County, awarded the respondents a verdict of $15,184.79 in a contract action for the unpaid balance of the purchase price of six electrical generators and equipment. The appellants admitted the purchase of the items in question but contended the generators completely failed, from the time of their delivery, to conform to the requirements of the contract and counter-claimed for the expenses incurred in overhauling, redesigning and repairing the generators.
The appellants manufacture cerium metal by a process of electrolysis, electricity being transmitted from the electrical generators to the cerium by means of a carbon electrode which is suspended in the cerium pot. The cerium melts and boils and creates a turbulence as it splashes and surges around in the containers, the electrical circuit being repeatedly broken. The sudden and constant interruptions of the electrical circuit effect a tremendous electrical and magnetic shock to the generator, physically evidenced at the point where the revolving commutator and the brushes meet. Unless the generator is constructed in a way to compensate for the sudden breaks in the circuit, there is excessive and destructive sparking at the brushes, resulting in roughing and wearing of the commutators. If the generator armature is properly wound, the generator will remain stable and will not be much affected by the making and breaking of the circuit.
The manufacturer of the equipment, the Hanson-Van Winkle Munning Company, by letter, furnished the appellants a quotation on its 2,000 ampere 7-40 volt generator and, on its understanding of the appellants' requirements, recommended this particular one. The manufacturer's representative, who inspected the appellants' plant, also represented the respondents and was "working in connection with" them. There is ample evidence that the sellers understood the generators were to be fit for use in the purchasers' electrolytic process.
The appellants ordered the generator sets which they specified were to be in accordance with the oral representations made by the respondents and they were put into operation in January of 1947. It is contended they failed to perform properly from the start and, as a result, a crew of repairmen furnished by the manufacturer had endeavored to discover and correct the trouble. There was testimony that excessive sparking of the commutators at the point of contact with the brushes resulted in pitting and burning of the commutators and destruction of the brushes. It was indicated this trouble was traceable directly to the intermittent breaking of the circuit three to four times per second as the cerium surged in the pots, and the issue was whether or not the generators were suitable for the appellants' particular use and whether the respondents had warranted them to be fit for that purpose.
The manufacturer's chief engineer suggested that chlorine fumes were responsible for the difficulty encountered and, in an effort to support this theory, Dr. Herbert C. Roters, an expert witness, was produced in rebuttal. He had been called in by the respondents in June, 1948, while the suit was pending, to examine the generators while in operation at the appellants' plant. He inspected the plant conditions and the maintenance of the generators, observed the commutators and brushes, the sparking, the wear of the commutators and the voltage drop, and "specifically examined the machines." On the stand, he outlined to the jury the plant's ventilating system and mentioned the copper chloride content of the residue he had removed from the commutators. The effect of the sparking he minimized by referring to it as "light pin point sparking" and as "not generally considered destructive."
The witness, on direct examination, was asked how he went about his study and what conclusions he reached. He replied:
"I went about it this way. I was furnished by the Hanson-Van Winkle Munning Company complete data on that machine. They told me the dimensions of every iron part, how thick the yoke was, how long it was, what kind of steel it was made of, how the field poles were made, what kind of steel, the number of turns of wire on the field poles, and the size of that wire, and the ...