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Falcone v. New Jersey Bell Telephone Co.

Decided: November 28, 1967.

JULES J. FALCONE, PLAINTIFF-APPELLANT,
v.
NEW JERSEY BELL TELEPHONE COMPANY, A NEW JERSEY CORPORATION, AND RICHARD KEPPLER, DEFENDANTS-RESPONDENTS



Conford, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

Plaintiff appeals from a judgment of $5,000 in his favor following a jury verdict in that amount.

Plaintiff sued for personal injuries sustained on October 14, 1958 when his vehicle was struck in the rear by one owned by defendant New Jersey Bell Telephone Company and driven by its employee Keppler. Both cars had been proceeding north on South Main Street, Phillipsburg. Plaintiff

testified that when he reduced speed because the car ahead of him did so preparatory to making a left turn, he was struck in the rear by defendants' panel truck. Keppler's version was that plaintiff had been following closely behind the car ahead and stopped suddenly when the car ahead did so; thus he was unable to avoid striking him. There was a sharp dispute as to the severity of the crash, plaintiff testifying that the impact had driven him ahead some 30 to 35 feet and into the curb, while Keppler stated that the distance was only two to three feet.

At the trial, which began on September 26, 1966 and lasted eight days, plaintiff acted as his own attorney. His previous counsel had withdrawn on May 21, 1966. On June 15 the case was continued (peremptorily) until September 26, 1966 in order to permit plaintiff to obtain new counsel. He appeared on the trial date without counsel.

By its verdict the jury found "the defendant guilty of negligence" and awarded plaintiff the sum of $5,000. The present appeal followed. Defendants did not cross-appeal.

Plaintiff first contends that it was error to compel him to proceed to trial without counsel. We disagree. Plaintiff had been notified of the trial date three months in advance. The case was eight years old. Two of his treating doctors had already died, another was no longer available as a witness, and one of defendants' examining doctors had allegedly become so ill as to be unable to appear in court. Although plaintiff made a motion that the judge disqualify himself, no motion to continue the case was ever made. This apparently led the trial judge to conclude that plaintiff had elected to try his own case and he proceeded to warn plaintiff of the inadvisability of so doing. When plaintiff protested that he had not had sufficient time to secure counsel, the argument ended with the following colloquy:

"The Court: You had from June 15th which I consider sufficient time to get an attorney.

Mr. Falcone: I accept that.

The Court: We will start in five minutes."

Plaintiff next contends that the verdict for $5,000 in his favor was so grossly inadequate as to require that it be set aside as the undoubted result of passion, prejudice, mistake or partiality on the part of the jury. The difficulty with his position is that a motion for a new trial, which is a prerequisite to relief on this ground, was never made. R.R. 1:5-3(a), made applicable here by R.R. 2:5. In any case, the point is not important since we are reversing for other reasons and plaintiff will have a new trial.

Plaintiff next challenges the admission into evidence over objection of the deposition of Dr. Rolf E. Johnson, one of defendants' examining doctors. Dr. Johnson, an orthopedic surgeon, first examined plaintiff some 16 days after the accident and made six other examinations thereafter, the last on May 8, 1964. In December 1965 Dr. Johnson was found to be suffering from a heart disorder involving high blood pressure, hypertension and hypertensive cardiovascular disease. In September 1966, shortly before the trial date, defendants served notice of the taking of his deposition. Since plaintiff did not appear or request that it be adjourned, the deposition was taken and later offered in evidence at the trial. In support of its admission Dr. Feinberg, Dr. Johnson's treating physician, testified that in his opinion Dr. Johnson was not able to appear and testify. Although no contradictory testimony was introduced, plaintiff now contends that since it was conceded that Dr. Johnson was able to be about and attend to his ordinary duties, his deposition should have been excluded and he should have been required to appear personally. We are satisfied that the trial judge did not commit an abuse of discretion in admitting the deposition. R.R. 4:16-4(c)(3). Dr. Feinberg testified that Dr. Johnson's ...


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