The question presented is the applicability of N.J.S. 2A:81-2 to a negligence action in which one of the parties is sued in a representative capacity.
On March 7, 1961 the infant plaintiff, then aged 8, was struck and injured by an automobile owned and operated by Vincent Remolete. This action for damages for the injuries thus suffered was instituted on May 8, 1962. Thereafter Remolete died and his executor was substituted as defendant.
The case was tried to a jury. The evidence established that John Buska was struck by Remolete's automobile when John ran into the street to avoid a stone thrown by another boy. John and another small boy testified to the happening of the accident in support of plaintiff's claim. It is apparent that the manner in which decedent drove his automobile was a critical issue in the case and it was proved by oral testimony. The relevant portions of N.J.S. 2A:81-2 were read to the jury during the court's charge and the jury was instructed that it applied to the case.
The jury deliberated for 4 1/2 hours. It then sent out a request for further instructions as to the standard of proof required to establish a case against a decedent's estate. The
statute was again read to them. Fifteen minutes thereafter the jury returned with a verdict for defendant by a 10 to 2 vote.
Plaintiffs did not object to the original charge of the statute but did object when it was repeated in answer to the jury's question. They now move for a new trial on the ground that the statute is inapplicable in a negligence action.
The plaintiffs' case was very weak in proof of negligence. The verdict cannot be disturbed unless there was error in the instructions. However, it is evident that one or more jurors were probably influenced by the burden of proof placed upon the plaintiffs under the court's instructions. If it should be found that the statute does not apply, plaintiffs would be entitled to a new trial.
N.J.S. 2A:81-2 as amended by chapter 52 of the Laws of 1960, effective July 1, 1960, reads as follows:
"When 1 party to any civil action is a lunatic suing or defending by guardian or when 1 party sues or is sued in a representative capacity, any other party who asserts a claim or an affirmative defense against such lunatic or representative, supported by oral testimony of a promise, statement or act of the lunatic while of sound mind or of the decedent, shall be required to establish the same by clear and convincing proof."
Prior to the 1960 amendment, the statute read as follows:
"When one party to any civil action is a lunatic suing or defending by guardian or when one party sues or is sued in a representative capacity, no other party thereto may testify as to any transaction with or statement by the lunatic while of sound mind or with or by the decedent, unless:
a. The guardian of the lunatic or the representative of the decedent offers himself as a witness on his own behalf, and testifies to any transaction with or statement by his testator, intestate or ward, in which event the other party may be a witness on his own behalf as to all transactions with or statements by the lunatic while of sound mind or by the decedent, which are pertinent to the issue; or
b. The action is founded upon any allegation of fraud, breach of trust, willful default or undue influence, in which cases the defendant may be sworn and examined as a witness on his own behalf as to transactions with or statements by the lunatic or decedent.
Where a guardian or representative is a national bank, bank, trust company or other corporation, testimony of an officer or employee thereof shall be deemed testimony of the guardian or representative within the meaning of this section."
Counsel for plaintiffs contends that:
1. The 1960 amendment did not intend to change the nature of the matters to which the ...