Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
Plaintiffs Dolores Lieberman (Dolores) and her husband Richard appeal from an adverse judgment entered upon a jury verdict in an action instituted by them against defendant pursuant to N.J.S.A. 39:6-78 to recover damages for personal injuries and consequential losses as the result of an automobile accident allegedly caused by the sole negligence of an unknown operator of an unidentified motor vehicle. The claimed negligence is that the unascertainable driver, who was proceeding in a direction toward Dolores, crossed over the center line and caused her to lose control of her vehicle.
Plaintiffs urge as ground of reversal that the trial court erred on two separate occasions in excluding plaintiff's extra-judicial statement to officer Eugene Markulic as to the cause of the accident. They argue that this statement was admissible in evidence as an "excited utterance" or a "spontaneous declaration."
Officer Markulic testified for plaintiffs and for defendant. As a witness for the former, before Dolores testified, the policeman was asked on direct examination to state what she told him at the hospital following the accident, as to "how the accident occurred." Defendant's objection to this question was sustained.
Testifying as a defense witness after Dolores, Markulic stated on direct examination that she told him that she was going "about 40-45 miles per hour" at the time of the accident. This was in conflict with her courtroom testimony. Thereupon plaintiffs' counsel on cross examination asked the officer, "What was the rest of the statement she gave you?" Again, the court sustained defendant's objection.
During the argument on the validity of defendant's objection to the first question, plaintiffs, out of the presence of the jury and at the court's suggestion, made "an offer of proof" of the officer's answer which was that "she told him that another car forced her off the road."
Dolores testified that as she was proceeding in her lane of traffic she saw this unknown car, which was headed in her direction, very close to her and "coming over into" her lane whereupon she applied her brakes and "tried to swerve over to the right" to avoid hitting it. She further testified that as she did she went over to the right, hit the soft shoulder and lost control. Thereafter her automobile swerved left across the highway and up an embankment, rolled down and came to rest on the left shoulder.
As a result of the accident Dolores suffered a cerebral concussion, shock, fractures of multiple facial bones, lacerations of her face, and other painful injuries. She was removed by ambulance from the scene of the accident to the hospital. The pertinent conversation with the officer occurred in the emergency room of the hospital approximately one hour after the accident. At the time her head was bandaged and "she was in pain and a little dazed."
Before the trial judge ruled upon propriety of the first question propounded to officer Markulic with reference to plaintiff's statement, the officer testified out of the presence of the jury to the circumstances surrounding its making. Thereafter, although the court found the statement to be "inherently reliable," it sustained defendant's objection because "she [Dolores] is here," i.e., she was available as a witness.
In determining whether a proffered statement is admissible under the "excited utterance" or "spontaneous declaration" exception to the hearsay evidence rule, the court must decide the preliminary question of whether the declarant had any opportunity for deliberation or reflection, or whether the utterance was a spontaneous one. The matters for the court to consider are the element of time, the circumstances of the accident, the mental and physical condition of the declarant, the shock produced, the nature of the utterance (whether against the interest of the declarant or not, or made in response to questions or involuntary), and any other material facts in the surrounding circumstances. These matters are all to be weighed in determining the basic question, namely, whether the utterance was spontaneous and unreflective, and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation. Riley v. Weigand, 18 N.J. Super. 66, 73 (App. Div. 1952); Atamanik v. Real Estate Management, Inc., 21 N.J. Super. 357, 364 (App. Div. 1952); Fagan v. Newark, 78 N.J. Super. 294, 303-304 (App. Div. 1963).
The trial judge did not consider or weigh these factors in making his determination. Although he found the statement to be reliable, he excluded it solely upon the erroneous conception that this result was mandated by the fact that plaintiff was available as a witness. Unavailability of the declarant is not a prerequisite to the admission of such a statement. ...