Eastwood, Proctor and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
This is an appeal from judgments entered in favor of the plaintiffs at the conclusion of the sixth jury trial in this case. The Mead and Kemble suits were brought to recover for personal injuries, pain and suffering and medical expenses suffered by Alanson E. Mead and, under the Death Act, for the death of John Courtney Kemble, caused by the alleged negligent operation of defendant's station wagon by its agent, servant or employee. The actions were tried together and resulted in verdicts for plaintiff, one in the Mead case for $26,506, with costs, and in the Kemble case for $25,920, with costs. Application of the defendant for a new trial was denied by the trial judge.
The Supreme Court, in Mead v. Wiley Methodist Episcopal Church , 4 N.J. 200 (1950), reversed the judgments entered in the fifth trial. We make reference to the factual recital in the Supreme Court's opinion and, therefore, deem it unessential to indulge in a repetition thereof. Suffice it to say, that the accident occurred on June 19, 1935. At the trial, the plaintiffs introduced proof to establish that one Rose, an employee of the defendant, operated the car, having entered it and climbed over one Joslin who, in an intoxicated condition, had gotten into the vehicle while parked by Rose, and that it was Rose's negligence that caused the plaintiffs' damages, whereas the defendant sought to prove that Joslin, in effect, stole the car, then operated it on the wild ride
eventuating in striking the plaintiffs' decedents, Mead and Kemble. Kemble was killed in the accident. Mead, who suffered serious injuries, died on April 15, 1950 from other causes.
Aside from the question of damages the only issue submitted to the jury was the identity of the operator of the defendant's vehicle.
The appellant advances the following grounds for a reversal of the judgments: (1) that the court erred in overruling defendant's offer to prove, for the purpose of contradicting its own witness, Gilbert S. Joslin, that he had on prior occasions pleaded guilty to a charge of drunken driving, and criminal charges of larceny of the station wagon and manslaughter by automobile; (2) that the court erred in overruling defendant's offer to prove the aforesaid pleas of guilty of Gilbert S. Joslin for the purpose of establishing his identity as the operator of the station wagon; (3) that the court erred in charging the jury that plaintiffs were entitled to the benefit of the presumption flowing from the fact of ownership of the station wagon; (4) that the verdict was against the weight of the evidence and the court erred in its denial of defendant's motion for a new trial; and (5) that the court erred in taxing as part of plaintiffs' costs, the costs awarded to defendant on reversal of judgments entered at the fifth trial and paid by plaintiffs prior to the sixth trial.
We think that the grounds advanced under points (1) and (2) may be advantageously discussed together. The defendant called Gilbert S. Joslin as its witness. He admitted that he was intoxicated at the time in question; that he had never been an inmate of or an employee of the Wiley Mission nor an employee of the church; that he was an entire stranger to Alfred C. Rose, the defendant's employee; that he remembered getting into the station wagon and lying on the seat; that after the crash, he believed he fell out of the right hand side of the station wagon, and in so doing, sustained a head injury; that he staggered away from
the station wagon and was stopped or tripped by some one whom he could not recall; that he was placed under arrest and was taken from the scene of the accident, first to the hospital and then to the police court, and that he had no recollection as to how he got from in front of the mission after he got into the station wagon to the scene of the crash at Third and Market Streets. Joslin was then asked if on the following Monday he was not charged with driving the station wagon while under the influence of intoxicating liquor. The plaintiffs' objection to the question was sustained by the court. Thereafter, the defendant made an offer of proof that on the Monday following the accident Joslin was charged with and pleaded guilty to operating the station wagon while intoxicated; that subsequently Joslin plead guilty to charges of larceny of the station wagon and manslaughter by automobile, all of the charges growing out of the accident in question; that he was represented by counsel; that sentences of imprisonment were imposed upon and served by him.
This offer of proof was made to establish admissions by Joslin that he was the operator of the station wagon, in contradiction of his testimony at the trial that he then had no recollection of what occurred during the operation of the car, and to establish the identity of Joslin as the operator of the station wagon.
Defendant further offered the evidence of the deputy county clerk and the records of the Special Sessions Court of Camden County for the year 1935, containing the aforementioned proceedings against Joslin. Upon objection of plaintiffs, defendant's proffered proofs were declared to be inadmissible.
Defendant contends that it was entitled to prove that Joslin pleaded guilty to these charges, as an admission contradictory in nature of his testimony that he had no recollection of driving the station wagon. In support of this contention the defendant cites the cases of Fox v. Forty-Four Cigar Co. , 90 N.J.L. 483 (E. & A. 1917); Lenz v. [23 NJSuper Page 348] Public Service Railway Co. , 98 N.J.L. 849 (E. & A. 1923); Weilbacher v. Rudlin , 125 N.J.L. 631 (E. & A. 1941), and states that the following cases are in accord: Thorp v. Leibrecht , 56 N.J. Eq. 499 (Ch. 1898); Ingersoll v. English, Executor , 66 N.J.L. 463 (Sup. Ct. 1901); Buchanan v. Buchanan , 73 N.J. Eq. 544 (Ch. 1908); Moebius v. Williams , 84 N.J.L. 540 (Sup. Ct. 1913); Schreiber v. Public Service Ry. Co. , 89 N.J.L. 183 (E. & A. 1916); Mesce Loan Co. v. Marinaro , 117 N.J.L. 86 (Sup. Ct. 1936); State v. Salimone , 19 N.J. Super. 600 (App. Div. 1952). However, a careful examination of the cases cited by the defendant indicates that they involved factual situations differing from the case sub judice , and we are persuaded that they have no controlling effect. To illustrate, in the case of Fox v. Forty-Four Cigar Co., supra , the plaintiff called as his witness one Max Lipschutz, a stockholder, director and assistant treasurer of the defendant company, who denied that at the time of the accident the car was driven by him as such stockholder, officer, director, agent or employee, whereupon he was confronted with a letter wherein he made a contrary statement. The Court of Errors and Appeals reversed the trial court's exclusion of the alleged contradictory letter. It is apparent that the Fox case is readily distinguishable from the case under review, in that the witness was one of the interested parties, whereas here, there was no privity between the plaintiffs and the witness. In the case of Lenz v. Public Service Railway Co., supra , the only question considered by the Court of Errors and Appeals dealt with ...