On appeal from the Superior Court, Appellate Division, whose opinion is reported in 10 N.J. Super. 45 (1950).
For affirmance -- Chief Justice Vanderbilt and Justices Heher, Wachenfeld, Burling and Ackerson. For reversal -- Justices Case and Oliphant. The opinion of the court was delivered by Ackerson, J.
The basic question presented by this joint appeal is whether there was trial error in admitting, over the objection of the plaintiffs' attorney, the testimony of defense witnesses whose names were known but not disclosed in response to an interrogatory soliciting the names and addresses of witnesses to the accident involved in the litigation.
These cases are death actions which arose out of the following occurrence: On October 20, 1946, William Evtush and Connell Beasley were riding together on the latter's motorcycle and while attempting to pass a bus owned by the defendant, The Hudson Bus Transportation Co., Inc., which was going in the same direction, they collided with another bus of the same company proceeding in the opposite direction, resulting in the instant death of both motorcyclists. Their representatives, acting through the same attorneys, brought these separate actions against the bus company and the two individual defendants who were the drivers respectively of the buses involved in the unfortunate accident.
The Evtush case was first tried on March 1, 1948, in the former Hudson County Court of Common Pleas and resulted in a non-suit at the end of the plaintiff's case. It was later reinstituted. In January, 1949, which was after the aforementioned trial of the Evtush case but before the trial of the Beasley case, the attorneys for Beasley (who were the same as in the Evtush case) served upon the defendants an interrogatory, pursuant to Rules 3:33 and 3:26-2, demanding the following information:
"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."
The answer thereto gave only the names and addresses of the individual defendants, Meyer and Haddon -- the bus drivers -- as witnesses to the accident, and their joint affidavit attached thereto stated as follows:
"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."
While the foregoing interrogatory was addressed to the corporate defendant as well as the two individual defendants, and apparently was answered only by the latter, nevertheless, it is conceded that the answer was intended to bind all of the defendants.
The Beasley case was subsequently tried in April, 1949, and resulted in a dismissal at the end of the plaintiff's case. This judgment was reversed by the Appellate Division and a new trial ordered (5 N.J. Super. 181 (1949)). Thereafter, in November, 1949, the two cases were consolidated for the purpose of trial and they were tried together in the Hudson County Court, Law Division, in January, 1950.
At the trial of the consolidated cases the defendant, James Haddon, testified that he took the names and addresses of a few passengers who were in his bus at the time of the accident and turned them over to the corporate defendant. Besides the two bus drivers themselves, the defendants called two additional eye-witnesses of the occurrence. One, Howard Baker, testified he was a passenger in one of the buses, whereupon, plaintiffs' attorney objected to further testimony "* * * of this witness or any other witness of the defendants * * * to the accident * * * unless I be permitted to cross examine as to how and when they got his name, and if it appears that they had gotten it prior to the interrogatories in question, I am going to object to the introduction of any testimony by this or any other witness on behalf of the defense." Without further comment ...