For modification -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- Justice Heher. The opinion of the court was delivered by Oliphant, J. Heher, J. (dissenting).
This is an automobile accident case in which suit was instituted by the plaintiff for damages resulting from the death of her intestate. Three motor vehicles were involved, an automobile owned and operated by defendant Settle in which the deceased was a passenger, a truck of the Fischer Baking Company, which was being operated by its employee Schirber, and a bus owned by the Central Greyhound Lines, Inc., of New York, and operated by its employee Heasley. Each of the five defendants are charged in separate counts and all of them are charged jointly with negligence which proximately caused the death of Mr. Ferry.
The jury returned a verdict of no cause of action as against the defendant Settle and of $100,000 against all the other defendants. On motion made to the trial court this was later reduced to $85,450 and judgments for that amount were entered.
An appeal was then taken by the unsuccessful defendants to the Appellate Division. These defendants Fischer Baking Company and Schirber contended, inter alia, that certain testimony, which will be alluded to hereafter, should have been excluded and that its reception into evidence constituted harmful, prejudicial error as to them.
The Appellate Division reversed the judgments below as to all four defendants on the ground of error in the admission of the complained of testimony. 6 N.J. Super. 107 (1950). Following this decision the plaintiff petitioned for a rehearing which was granted and after reargument the court filed its opinion in which it modified its earlier decision and held that the cause of action against the various defendants was separable and that the judgments entered in the trial court
should be reversed as to the Fischer Baking Company and Schirber only. It accordingly ordered the judgments affirmed as against the Central Greyhound Lines and Heasley and a new trial on the issue of liability as to the Fischer Baking Company and Schirber. 7 N.J. Super. 253 (1950).
Both the plaintiff and defendants Central Greyhound Lines, Inc., and Heasley sought certification to review the determination of the Appellate Division, and their petitions were granted. We are concerned here with the appeal of the plaintiff alone.
At the trial, after all the defendants had testified, Heasley was recalled to the stand by counsel for the defendant Settle and on cross-examination by his own counsel, who also represented Central Greyhound, testified over the objection by counsel for the plaintiff, the baking company and Schirber that Settle, sometime after the accident, had said to him: "Son, you have nothing to worry about. It isn't your fault." Then Settle's counsel asked the witness, "He also said to you that it was not the fault of either of you, didn't he, either you or himself?" and over the objection of counsel for the baking company and Schirber he was permitted to answer, "He did say that."
The appellant admits this testimony was technically hearsay but urges it was obviously and demonstrably ignored by the jury and that its reception into evidence did not injuriously affect the substantial rights of the defendants here whose liability was amply established by other and competent evidence.
The testimony was not admissible for any purpose. It was not part of the res gestoe and it was palpably self-serving. Further, it called for a stated conclusion and opinions of a layman with respect to liability. Its admission being error, did it injuriously affect the substantial rights of the baking company and Schirber? We are of the opinion it did. While tending to exculpate Settle, the Central Greyhound and Heasley it inculpated the other defendants. Since it was ...