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Johnson v. Malnati

Decided: May 11, 1970.


Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Leonard, J.A.D.


[110 NJSuper Page 279] Plaintiff and defendant were the operators of two motor vehicles which were involved in a collision at the intersection of Columbia Avenue and Devon Street, Kearny, on December 23, 1964. Plaintiff instituted this action to recover for personal injuries and attendant

damages and defendant counterclaimed for property damage to his motor vehicle. Following a jury trial limited to liability alone, the jury returned a verdict of no cause of action as to both parties. Only plaintiff appeals.

Her contention that the assignment judge committed prejudicial error in ordering this "simple tort" case to be tried on liability alone is without substance. On January 6, 1969, the day fixed for the trial, plaintiff's attorney requested an adjournment on the ground that his medical witness was unavailable. The case was then on the trial list for over three years. Under these circumstances, we find no mistaken exercise of discretion by the trial judge in denying the request for an adjournment and directing the matter to proceed to trial solely on the issue of liability. R.R. 4:43-2(b), now R. 4:38-2(b).

Following the accident plaintiff was taken by police ambulance to the hospital emergency room where she was met by the attendant nurse who, at the trial, was called by defendant as a witness. The nurse testified, over objection, that plaintiff while in the emergency room told her that "she misjudged a turn and hit another car * * *." The nurse recorded this statement in the hospital report, which document she had with her while testifying.

Plaintiff contends that the testimony of the nurse was not admissible either as a present recollection refreshed or as past-recollection recorded and that the same should have been excluded by the trial judge. She asserts that the witness referred to the hospital report and read from it while testifying even though she could not say that it refreshed her recollection. Thus, plaintiff argues that the report was indirectly allowed into evidence even though the trial court had previously excluded it. However, the record discloses that the witness testified that her memory was refreshed "after reading it [the report]." In any event, under the circumstances here present, it was permissible for the witness to read from the report. Evidence Rule 63(1)(b)(iii). This point lacks merit.

Following the nurse's testimony plaintiff was recalled to the stand as a rebuttal witness and asked to describe her condition in the hospital emergency room when she allegedly made the statement in controversy. Upon objection plaintiff was not permitted to answer. In the course of the argument between counsel as to the admissibility of this evidence plaintiff was allowed, out of the presence of the jury, to make a proffer of her proof wherein she described her condition as follows:

I had severe pain in my stomach from hitting the steering wheel and pains in my chest, and my face was bleeding. I had pains in my gums and lower chin and a few teeth were knocked out and I was bleeding profusely, and I had to have a towel up to my mouth to stop the bleeding.

Upon being questioned as to her mental condition plaintiff replied, "I don't know. All I know I had terrible pain. I don't remember anything else." The trial court excluded this testimony upon the ground that the trial was limited to the issue of liability and that any testimony as to plaintiff's injuries would have been prejudicial to defendant. In so doing the court erred.

It has been generally recognized that the party against whom an alleged admission is shown may introduce evidence to explain the statement and thus diminish its weight as an admission. He may show the circumstances under which the statement was made. 31A C.J.S. Evidence § 380, at 915-917; 3 Wigmore on Evidence (3d ed. 1940) § 1044, p. 737. We have held that a witness who is confronted with a prior inconsistent statement may, in an attempt to explain away the supposed inconsistency, testify to the circumstances surrounding the giving of the statement. State v. Athorn , 92 N.J. Super. 326, 329-330 (App. Div.), certif. den. 48 N.J. 355 (1966). We conclude that the same rule is applicable to admissions. Cf. Atlantic Northern Airlines, Inc. v. Schwimmer , 12 N.J. 293, 304-305 (1953). Thus, plaintiff's proffered

testimony as to her physical and mental condition should have been ...

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