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Abbatemarco v. Colton

Decided: June 21, 1954.


Eastwood, Francis and Freund. The opinion of the court was delivered by Freund, J.s.c. (temporarily assigned).


The plaintiff John Abbatemarco appeals from a judgment for the defendant Beatrice Colton entered on a jury verdict of no cause of action in a suit to recover damages for personal injuries and property damage arising out of an automobile collision, which occurred on November 19, 1952.

The error charged is the exclusion from evidence of the deposition of the sole eye-witness, whose name and address the plaintiff did not disclose in response to defendant's interrogatories. After joinder of issue, the defendant served written interrogatories, of which No. 12 read as follows:

"State the names and addresses of all witnesses known by you or your representatives to have any knowledge of the occurrences set forth in the complaint."

To this, the plaintiff answered under oath on February 28, 1953:

"Investigation is not complete. Witnesses will include occupants of the two automobiles, together with the police officer who investigated, together with other drivers who either saw the accident or came up afterwards. Their names will be furnished prior to trial."

It appears that one Fred Hellman saw the accident and two or three days thereafter the plaintiff called upon him and discussed the matter. But the plaintiff's attorney testified that he was not informed about this witness until the early part of June 1953 when he was preparing the case for trial, which was then scheduled for June 4 or 5, and that he then orally imparted the name and address of the witness to one of the defendant's attorneys. The case was not reached for trial in June and in the fall was listed for trial on October 28. Some short time prior thereto the plaintiff's attorneys learned that the witness had suffered a heart attack and would be unable to appear in court, necessitating the taking of his deposition. However, a mutually agreeable

time could not be arranged because of the illness of one of the defendant's attorneys. On Friday, October 23, the plaintiff applied for an adjournment of the trial, which was denied, but an application to take the deposition on Monday, October 26, was granted. By letter dated October 23, the plaintiff's attorneys notified the defendant's attorneys that the deposition would be taken at 4:30 P.M. on the 26th, but the order itself was not signed until the morning of the 26th and was served only a few hours before the designated time. Nevertheless, the defendant's attorneys appeared, and the deposition was taken, and the witness cross-examined, over their objection that his name and address had not been disclosed in the answers to interrogatories.

The case was not tried until November 23 and 25. The plaintiff offered to read to the jury the deposition of Mr. Hellman, but the defendant's objection was sustained, the court declaring that the answers to interrogatories should long since have been amended to disclose the name and address of the witness, and that since he would not have been permitted to testify had he appeared, his deposition was inadmissible. The plaintiff thereupon moved "for a mistrial on the grounds that the ends of justice cannot be served in accordance with the practice of this Court and by your Honor's ruling which denies us the right to present to this jury the only eye witness to the happening of this particular accident." The motion was denied, the case was submitted to the jury, and a verdict of no cause of action rendered.

The right of a party to discovery of the identity and location of persons having knowledge of relevant facts is specifically granted by R.R. 4:16-2, which is substantially the same as Federal Rule 26(b), 28 U.S.C.A. This rule is "designed to eliminate, as far as possible, concealment and surprise in the trial of law suits to the end that judgments therein be rested upon the real merits of the causes and not upon the skill and maneuvering of counsel." Evtush v. Hudson Bus Transportation Co. , 7 N.J. 167 (1951); Atlantic Northern Airlines, Inc. v. Schwimmer , 12 N.J. 293

(1953); Hickman v. Taylor , 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947); 4 Moore's Federal Practice , ยง 26.19, p. 1075; Vanderbilt, Modern Procedure, ch. IX, Pretrial Procedures, p. 563 et seq. It affords parties "an opportunity before trial (1) to investigate their (witnesses') background in order to discover any discrediting matter which might exist, (2) to learn their version of the collision, and (3) to ascertain from them the names and addresses of any other witnesses to the accident known to them." Failure to disclose the names and addresses of witnesses in response to interrogatories ...

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