On appeal by certification to the Superior Court, Appellate Division, whose opinion is reported in 11 N.J. Super. 189.
For affirmance -- Chief Justice Vanderbilt, and Justices Burling and Ackerson. For reversal -- Justices Case and Oliphant. The opinion of the court was delivered by Ackerson, J.
[8 NJ Page 57] These cases arose out of a collision between an automobile owned by Ridgewood Cleaners, Inc., and a diesel engine of the New York, Susquehanna & Western Railroad Company at a grade crossing in the City of Paterson on June 19, 1948, resulting in the deaths of Harry Capone, driver of the automobile, and Jean Panepinto who was riding with him. Each decedent was 27 years old and unmarried.
Three separate actions were instituted in the Superior Court, Law Division, against Harry K. Norton, trustee of the railroad company: one by Mary Capone, administratrix ad prosequendum of the estate of Harry Capone, another by Peter Panepinto, administrator ad prosequendum of the estate of Jean Panepinto, and the third by Ridgewood Cleaners, Inc., for damage to its car. These actions were consolidated for the purpose of trial and resulted in verdicts for the plaintiffs of $28,200 in the Capone case, $42,000 in the Panepinto case and $1,775 in the Ridgewood Cleaners case.
On motions by the defendant for a new trial, the court found that the damages assessed in the death actions were excessive and gave the plaintiffs the alternative of accepting reductions in the amounts of their respective verdicts or a new trial, the reductions being to $24,000 in the Capone case and $34,000 in the Panepinto case. These reductions were accepted and judgments in the reduced amounts were accordingly entered. The motion as to Ridgewood Cleaners, Inc., was denied.
Appeals by the defendant to the Appellate Division of the Superior Court were consolidated for argument and resulted in the affirmance of the judgment in the Ridgewood Cleaners, Inc., case and the reversal of the judgments in the Capone and Panepinto actions solely on the ground that the damages awarded were so excessive as to require a new trial limited to the single issue of damages.
On the petition of the defendant, trustee of the railroad company, and the cross-petition of the plaintiffs in the two death actions, we granted certification to review the judgments so entered in the Appellate Division.
The first point argued by the defendant on his appeal is that the trial court erred in allowing the testimony of witnesses whose names had not been furnished in response to interrogatories served by the defendant upon the plaintiff in each of the death actions pursuant to Rule 3:33. The interrogatories were identical and demanded that the plaintiff in each case "Furnish the names and addresses of any and all
witnesses to the said accident." The interrogatories were filed February 4, 1949, before defendant made answer to the Capone and Panepinto complaints which were filed January 26, and 25, 1949, respectively. In the Capone case, the plaintiff's answer, filed February 18, 1949, stated: "I personally do not know the names and addresses of any witnesses to the said accident." The answer in the Panepinto case, filed March 7, 1949, stated: "The only witness to the accident that deponent knows of is Louis Friedman Esq. of 64 Hamilton Street Paterson New Jersey," who, incidentally, was not called as a witness at the trial. The record does not reveal that any such interrogatory was served upon the plaintiff, Ridgewood Cleaners, Inc. On February 25, 1949, defendant moved for an order compelling "a complete answer" to the above quoted interrogatory in the Capone case, which motion was denied.
At the trial of the consolidated causes, which took place early in March, 1950, more than a year after the answers to the foregoing interrogatories had been filed, plaintiffs produced two eye-witnesses to the fatal accident whose names had not been set forth in said answers. One of these was Elizabeth J. Barker and defendant objected to her giving any testimony with reference to the occurrence because her name had not been given in response to the interrogatories, and the objection was overruled. No similar objection seems to have been interposed to the testimony of the other witness so produced. Defendant did not contend in the trial court, or in his brief or at the oral argument in this court, that the plaintiffs withheld the names of witnesses known to them or their attorneys at the time the answers to the interrogatories were made or at the time the above mentioned motion for a more complete answer to the specified interrogatory in the Capone case was denied, and no additional interrogatories to elicit any later information on the subject were served at any time throughout the year which elapsed before the trial.
Defendant argued in the trial court, as he does here, that the true interpretation of Rule 3:33 ...