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Evtush v. Hudson Bus Transportation Co.

Decided: November 1, 1950.

WILLIAM EVTUSH, SR., ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF WILLIAM EVTUSH, JR., DECEASED, PLAINTIFF-APPELLANT,
v.
THE HUDSON BUS TRANSPORTATION CO., INC., A CORPORATION, GEORGE R. MEYER AND JAMES HADDON, DEFENDANTS-RESPONDENTS. THELMA G. BEASLEY, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF CONNELL BEASLEY, DECEASED, AND THELMA G. BEASLEY, GENERAL ADMINISTRATRIX OF THE ESTATE OF CONNELL BEASLEY, DECEASED, PLAINTIFF-APPELLANT, V. THE HUDSON BUS TRANSPORTATION CO., INC., A CORPORATION, GEORGE R. MEYER AND JAMES HADDON, DEFENDANTS-RESPONDENTS



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.

Mcgeehan

These cases were tried together in January, 1950, in the Hudson County Court, Law Division, and in each case a judgment of no cause of action was entered in favor of defendants upon jury verdict. The question presented is whether the trial court erred in admitting, over objection of the plaintiffs, the testimony of defense witnesses whose names were not divulged in defendants' answer to interrogatories.

These death actions arose out of a collision between a motorcycle and a bus, which occurred on October 20, 1946, at about 9:30 P.M. on County Road, Secaucus. A bus owned by defendant Hudson Bus Transportation Co. and driven by defendant George R. Meyer, and a motorcycle driven by decedent Connell Beasley, on which decedent William Evtush, Jr., was riding, were proceeding in a northerly direction, and another bus owned by defendant Hudson Bus Transportation Co. and driven by defendant James Haddon was proceeding in a southerly direction, when the motorcycle and the southbound bus collided as the motorcycle was passing or attempting to pass the northbound bus. Connell Beasley and William Evtush, Jr., were killed instantly in the collision. Both actions charged that the deaths were caused by the negligence of the defendants.

The Evtush suit was first tried on March 1, 1948, and resulted in a nonsuit at the end of the plaintiff's case. Shortly thereafter, the Evtush action was reinstituted.

The Beasley suit was first tried on April 5, 1949, and resulted in a dismissal at the end of the plaintiff's case. The

judgment of the County Court in the Beasley case was reversed and a new trial ordered. Beasley v. The Hudson Bus Transportation Co., Inc. , 5 N.J. Super. 181 (App. Div. 1949).

In January, 1949, attorneys for plaintiffs served the defendants with interrogatories and defendants' answer was served on February 4, 1949. The interrogatories demanded: "State the name or names and address or addresses of any witnesses to the accident in which defendants were involved and upon whom said defendants intend to rely." Defendants George R. Meyer and James Haddon answered: "We are two of the defendants in the above entitled action named, have read the interrogatory propounded by the plaintiff to the defendants therein, have personal knowledge of the facts to which said interrogatory relates, and are authorized to make and verify the answer thereto. We were eye-witnesses to the occurrence to which the interrogatory refers and we intend to rely upon our testimony on the trial of this case. We do not, however, know what, if any, other witnesses there were to the occurrence referred to, nor do we know upon whom, if anyone, in addition to ourselves, our attorney intends to rely." At the oral argument, counsel for defendants conceded that the answer to the interrogatory as made by Meyer and Haddon was intended to bind all the defendants.

Interrogatories are authorized by Rule 3:33, which provides: "* * * any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation * * * by any officer or agent, who shall furnish such information as is available to the party. * * * The interrogatories shall be answered separately and fully in writing under oath. * * * Interrogatories may relate to any matters which can be inquired into under Rule 3:26-2 * * *." The latter Rule, in describing the permissible scope of examination, provides that "the deponent may be examined regarding any matter, not privileged, which is relevant to the subject

matter involved in the pending action * * * including * * * the identity and location of persons having knowledge of relevant facts."

The interrogatory propounded is somewhat ambiguous. Standing alone, it leaves in doubt whether the demand is for the names and addresses of any witnesses to the accident known to the defendants, and also the names of such of these witnesses upon whom the defendants intend to rely, or merely for the names and addresses of the witnesses to the accident upon whom the defendants intend to rely. However, the answer of the defendants, "We do not, however, know what, if any, other witnesses there were to the occurrence referred to, nor do we know upon whom, if anyone, in addition to ourselves, our attorney intends to rely," shows clearly that the defendants construed the demand as being a demand for the names and addresses of witnesses to the accident and a further demand for the names and addresses of such of these witnesses upon whom the defendants intended to rely.

Under our Rules, the plaintiffs had the right to make their first demand, namely, for the names and addresses of witnesses to the accident, and were entitled to a full and truthful answer disclosing such names and addresses as were known to the defendants at the time of the answer. Schwartz v. Public Service Coordinated Transport , 64 A.2d 477 (Essex Cty. Ct. 1949), not officially reported; cf. cases construing the comparable federal rule gathered under Federal Rules Service, Findex 33.316. Our conclusions are based solely on the plaintiffs' first demand and the defendants' answer thereto. No question as to the plaintiffs' right to make their second demand, namely, for the names and addresses of the witnesses to the accident upon whom the defendants intend to rely, is before us and therefore we express no opinion thereon. See Rules 3:33 and 3:30-2; compare McNamara ...


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