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State v. Probasco

Decided: December 21, 1970.

STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-APPELLANT,
v.
ETHEL W. PROBASCO, ET AL., DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Monmouth County.

Conford, Kolovsky and Carton. The opinion of the court was delivered by Conford, P.J.A.D. Carton, J.A.D. (dissenting).

Conford

In this condemnation case, tried to a jury, involving two separate properties of the same owner, but differently located, the trial judge vacated the jury verdict as to both properties on the ground that the testimony of the State appraisal expert, Walter H. Geary, "was wilfully false, * * * was of a substantial nature, could have affected the creditability of the witnesses" of the landowner, "impeded cross-examination * * * as to a comparable property * * * and could have had an * * * influence" upon the jury's verdict. We granted leave to appeal.

Essentially, the trial court determined that the named witness testified willfully falsely in that he failed on direct examination to cite or use as a "comparable sale" a sale from Mapland Corporation to Jersey Central Power and Light Company of nearby property, and that he explained on cross and re-direct examination as his reason for failure to use the sale that the buyer was under stress of a special need to obtain land in the particular area for use as a substation to replace an existing sub-station being eliminated by a new jughandle on the highway. The basis for the conclusion of willful falsity of the foregoing was the circumstance that the same witness, in testifying for the State a few days later in another condemnation case but before a different

judge, as to the value of property of one Kaupelis located in the general area of the Probasco and Mapland properties, had there cited and relied on the Mapland-Jersey Central sale in arriving at his valuation.

On the argument of the motion to vacate the judgment before the trial court the State requested the opportunity to have Geary explain by deposition his use of the Mapland sale in the Kaupelis case in the light of his failure to use it in the instant case, no inquiry as to that question having been addressed to him in either trial, but the request was denied. We ordered such a deposition to be taken, in the exercise of our original fact-finding jurisdiction, and will refer to it later, but we are of the view that the action of the trial court was unjustified without regard to the contents of the deposition.

We emphasize at the outset that the jury verdict was not set aside on the ground that it was against the weight of the evidence, notwithstanding that was one of the grounds of the motion to set aside the verdict, but only for the assertedly willfully false testimony of the State's appraisal expert.

It is clear that willfully false testimony of a witness may in some circumstances justify setting aside a verdict or judgment. But there are stringent qualifications on the appropriate exercise of the power to vacate on that ground. They have been stated as follows in Shammas v. Shammas , 9 N.J. 321, 330 (1952):

". . . Perjured testimony that warrants disturbance of a final judgment must be shown by clear, convincing and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result. Further, a party seeking to be relieved from the judgment must show that the fact of the falsity of the testimony could not have been discovered by reasonable diligence in time to offset it at the trial or that for other good reason the failure to use diligence is in all the circumstances not a bar to relief. Balip Automotive Repairs, Inc. v. Atlantic Casualty Ins. Co., supra. Clearly the necessity to satisfy these tests before the judgment may be disturbed is itself a deterrent to repeated litigation of the same factual issues." (Emphasis ours).

See Balip Automotive Repairs, Inc. v. Schroeder , 8 N.J. Super. 238 (App. Div. 1950), aff'd, Balip Automotive Repairs, Inc. v. Atlantic Casualty Insurance Co. , 7 N.J. 152 (1951); Cermak v. Hertz Corp. , 53 N.J. Super. 455 (App. Div. 1958), aff'd o.b. 28 N.J. 568 (1959).

In the present case, the allegedly false testimony being that of an expert witness, the general rule aforestated must be further refined to reflect the concept that to be accounted perjurious the rendition by a witness of an opinion must be shown to have been adduced in bad faith, i.e. , that the opinion was one which in fact the witness did not entertain. State v. Sullivan , 25 N.J. Super. 484, 490 (App. Div. 1953), ...


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