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Carroll v. Houtz

Decided: December 28, 1966.

ELIZABETH CARROLL, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF WILLIAM M. CARROLL, AND ELIZABETH CARROLL, ADMINISTRATRIX OF THE ESTATE OF WILLIAM M. CARROLL, PLAINTIFFS-APPELLANTS,
v.
NEVINE HOUTZ AND KOFMAN'S, INC., DEFENDANTS-RESPONDENTS



Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

[93 NJSuper Page 217] Plaintiff Elizabeth Carroll, as administratrix and administratrix ad prosequendum of her

deceased husband, William M. Carroll, appeals from a judgment in favor of defendants, based upon a jury verdict of no cause for action.

Decedent's death followed a collision between a vehicle driven by him and a tractor-trailer owned by defendant Kofman's, Inc. and driven by Nevine Houtz, its employee, on Route 22, Mountainside.

At the trial plaintiff's evidence was to the effect that defendant's tractor-trailer had pulled out onto the highway from a diner and that it was so negligently operated and inadequately marked that decedent who was proceeding along the highway was unable to avoid a collision with it. Defendants denied negligence and charged contributory negligence. Houtz testified that the Carroll car struck him in the rear as he was driving easterly in the right (slow) lane of traffic. The trial judge submitted the issues of negligence and contributory negligence to the jury. In response to specific interrogatories the jury found both negligence on the part of defendants and contributory negligence on the part of decedent.

Plaintiff urges that the allowance into evidence over objection of a toxicological report made by an independent laboratory to the county physician of Union County and filed with his autopsy report was a violation of the hearsay rule and amounted to prejudicial error.

The facts bearing upon plaintiff's contention are not in serious dispute. The accident occurred at approximately 2 A.M. on October 7, 1963, and decedent expired soon thereafter. Notice of his death was duly given to the county physician, and on the afternoon of the same day Dr. David Schlein, one of the two assistant county physicians, performed an autopsy. As part of the autopsy, specimens of the blood and brain tissues of decedent were set aside for the purpose of alcohol analysis. Since Union County did not employ a toxicologist the specimens were forwarded to Edel Laboratories (Edel), an independent laboratory, for the purpose of a toxicological report. Edel's report, dated October 23, 1963,

was forwarded to the county physician and was placed in decedent's autopsy file in his office, where it remained until the trial. It showed that there was 0.0718% of alcohol by weight in the brain and 0.0920% of alcohol in the blood of decedent.

Although Dr. Schlein's autopsy report, dated October 7, 1963, recites the preparation and forwarding of the specimens to Edel, it contains no reference to Edel's subsequent findings. Dr. Schlein, who was the only physician called to testify on the point, stated that he had not seen the Edel report until the trial and did not know its contents.

Prior to trial, counsel for plaintiff was aware of the presence of the Edel report in the autopsy file and was familiar with its contents. There was no discovery by either side as to the nature of the tests utilized by Edel, and Brady, who signed the report, was not called as a witness by either side. The autopsy file was produced at the trial by plaintiff.

Defendants argue that the report was admissible (1) under the Uniform Business Records as Evidence Act, N.J.S. 2A:82-34 et seq.; (2) as a record of a chief county medical examiner made admissible by N.J.S.A. 40:21-30.10, or (3) as an official record excepted from the operation of the hearsay rule at common law. Barber v. Hochstrasser, 136 N.J.L. 76, 81-82 (Sup. Ct. 1947).

N.J.S. 2A:82-35 provides:

"A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."

In Mahoney v. Minsky, 39 N.J. 208 (1963), the basic theory underlying the admissibility of such records was set forth as follows:

"* * * [R]ecords which are properly shown to have been kept as required normally possess a circumstantial ...


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