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Hollander v. Smith & Smith

Decided: November 10, 1950.

NETTIE HOLLANDER, PLAINTIFF-APPELLANT,
v.
SMITH & SMITH, AND OTHERS, DEFENDANTS-RESPONDENTS



Jacobs, Bigelow and Jayne. The opinion of the court was delivered by Bigelow, J.A.D.

Bigelow

The plaintiff, a widow in her late 60's or early 70's, brings this action against Smith & Smith, a corporation, and its servants, John B. Hannon and Robert M. Taafe. She demands compensation for injuries which she suffered allegedly through the negligence of the defendants. Pursuant to the jury's verdict, judgment was entered in favor of the defendants, and she appeals.

Appellant was suffering from a serious illness. Her physician, Dr. Simon, decided to send her to Beth Israel Hospital and arranged with Smith & Smith, who operate an ambulance service, to take her there. Taafe and Hannon went to her home with the ambulance and moved her to the hospital. There, upon inquiry, they were told to take her to room 519. They then carried her on a canvas stretcher from the ambulance to the receiving room, where they laid the canvas stretcher, with the plaintiff, on a wheel stretcher and started rolling the plaintiff to her room. As they were passing along the corridor, suddenly she fell from the stretcher to the floor and was severely injured. Without further introduction, let us consider the grounds which are urged for reversal.

DISCOVERY BEFORE TRIAL.

The plaintiff applied, pursuant to Rule 3:34-1, for an order requiring Smith & Smith to permit plaintiff to inspect, before trial, statements that Taafe and Hannon had given to Smith & Smith's insurance carrier concerning the accident which was the basis of the suit. The denial of the motion is presented as a ground for reversal of the judgment. The affidavit which supported the motion did not show that the statements were in the possession of defendants, but only that they had been given to the insurance company. Whether they should be considered to be within the defendants' control, we

do not attempt to decide. See, however, Hickman v. Taylor , 329 U.S. 495; 67 S. Ct. 385 (1947). Respondent argues that the statements fall within the category of those obtained in anticipation of litigation and in preparation for trial and so were privileged under Rule 3:26-2. Whether or not the statements were strictly within the privilege, we consider that denial of the application was proper. While most of Rule 3:26-2 is taken from the federal rules, the last sentence seems to be based on Hickman v. Taylor and the opinions in that suit fully justify the action of the trial court in the present case. The appellant showed little or no need for production of the documents. She was at liberty to take the depositions of Taafe and Hannon. They actually testified at the trial. Seemingly the only benefit appellant might derive from a perusal of the statements which they had made to the insurance company was ammunition for cross-examination. That was insufficient to require the granting of her motion.

RULINGS ON EVIDENCE.

Attached to the wheel stretcher -- or to the mattress which was on top of it -- was a canvas belt which might be buckled around the patient so that the patient would not roll off the stretcher. The principal item of negligence charged against the defendants was their failure to strap plaintiff to the stretcher. In order to prove a standard of care, plaintiff's counsel asked Dr. Bernstein, a physician who practices at Beth Israel, and Dr. Somberg, a neurosurgeon, whether or not it was common practice, in transporting patients on such stretchers, to secure them with the belt so they would not fall off. Objections to the question were sustained on the ground that the custom or practice was immaterial. This ruling of the trial court seems to us erroneous. In Belleville Stone Co. v. Comben , 61 N.J.L. 354 (Sup. Ct. 1898); affirmed, 62 N.J.L. 449 (E. & A. 1898), proof of quarry methods was held proper. And in Deschamps v. L. Bamberger & Co. , 128 N.J.L. 527 (Sup. Ct. 1942); affirmed, 129 N.J.L. 517 (E. & A. 1943), evidence was received "respecting

the use of mats on the floor of the vestibules in similarly constructed places in the vicinity." And generally see Annotation in 137 A.L.R. 611. An important question for the jury was whether, under all the circumstances of this case, the defendants' failure to fasten the safety belt constituted a failure to use the care which a prudent person would have displayed. To aid the jury in finding the answer, evidence as to the general usage was admissible and so the objection should have been overruled.

The plaintiff took the deposition of Mr. Guinney, vice-president and general manager of Smith & Smith. He said that when Taafe and Hannon returned from the hospital, they told him of the accident. "I checked with them." "We discussed it." The trial court instructed the jury that the oral statements so made by Hannon and Taafe were not evidential as against Smith & Smith but only against the individual defendants. In our opinion, this was error. Statements of an agent are not evidence against his principal unless made in the course of the business entrusted to him. The statement, even of a general agent, although relating to the business of the principal, is inadmissible unless the statement itself is made in execution of the agency. Barcello v. Biel , 137 N.J.L. 606 (E. & A. 1948). But words spoken in pursuance of the duty of an agent, whether he be general or special, can be proved. Arenson v. Skouras Theatres Corp. , 131 N.J.L. 303 (E. & A. 1944). It is often said that such a statement is admissible only if the transaction to which it relates is pending at the time the statement is made. See 31 C.J.S., Evidence , ยง 343. Runk v. Ten Eyck , 24 N.J.L. 756 (E. & A. 1853). But this view is not sound; it stems from a confusion of the rules relating to res gestae with those concerning admissions ...


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