On appeal from Superior Court, Law Division, Essex County.
Approved for Publication September 26, 1995.
Before Judges Pressler and Wefing. The opinion of the court was delivered by Pressler, P.j.a.d.
The opinion of the court was delivered by: Pressler
The opinion of the court was delivered by PRESSLER, P.J.A.D.
This is an automobile negligence, personal injury action. Plaintiff Jacquelin S. Jeter claims to have sustained injuries when the vehicle she was driving was struck in the rear by an automobile owned by defendant Johnnie M. Moody and operated by defendant Sylvester Stevenson. Stevenson died before being served, and we understand that service upon his personal representative has still not been effected. The complaint was dismissed as to Moody on her motion for summary judgment. Plaintiff appeals. *fn1 We reverse.
The issue before the court on Moody's summary judgment motion was that of agency, and the motion was granted on the court's finding that there was "no proof of any agency relationship between the defendant driver Sylvester Stevenson, and the defendant owner, Johnnie M. Moody." We are satisfied that that finding is not supported by the record. We base this Conclusion on the presumption of agency to which plaintiff was entitled in discharge of her burden of coming forward with proof of agency and the questionable admissibility of the proof offered by Moody to rebut that presumption.
In support of her motion, Moody submitted a handwritten statement bearing Stevenson's signature. The statement, evidently taken by an investigator for Moody's automobile liability carrier, is dated August 14, 1991, two months after the accident. The statement is not sworn to and not authenticated. There is nothing in the record to indicate any of the circumstances under which the statement was taken, including the identity of the person taking it, whether it was dictated in full or in part or was entirely in Stevenson's own words, whether it was in Stevenson's or someone else's hand, *fn2 what Stevenson's state of health was at the time, whether other persons were present and, if so, who, and the inducements or explanations, if any, offered to Stevenson at the time of the taking. Indeed, none of the facts in the statement, nor even the fact of the taking of the statement itself, was corroborated by anyone not Moody, not the person taking the statement, and not the person witnessing the statement.
In the introductory portion of the statement, Stevenson identified himself as Moody's boyfriend for the past three years and noted his address, marital status, age and social security number, as well as Moody's address, where, he said, the statement was taken at 3:45 p.m. He also identified Moody's vehicle and explained that on the day of the accident, she had come to East Orange Hospital to pick him up after he had visited someone there. The balance of the unedited statement reads as follows:
As she drove to one of the front entrances, she told me that she had to go in to the Ladies Bathroom. She left the keys in the car and the car was still running. I was standing outside the car waiting for her. A man came by who was a security guard at the hospital. He asked me if I would give him a ride home, which was a short ways. I got into the car and so did the gentleman. Mrs. Moody did not give me permission to drive her car, I drove out of the hospital and turned onto Central Avenue. This road has two lanes in each direction. I was not drinking any alcohol nor was I taking any drugs. There was no road construction or anything to block my view. The sun was not in my eyes. I do not need eyeglasses to drive. The time was about 3:00 p.m. It was not raining and there was no water on the roadways, in was a clear sunny day. I have never drove this car more than 1 time when I had to take a sick lady home. Mrs. Moody will not let anyone drive her car. As I came upon the intersection of Central Avenue and South Burnet St. the car in front of me was backing up. I do not remember if the rear back-up lights were on. I stop my car completely but that car kept coming towards me in reverse while my car was stopped. This car hit me at the front center of the car. I was not injured and either was the passenger but he said I'm going to try to get some money out of this and he went to the emergency room. The car that hit us had 1 female driver. I don't know if she was hurt. the Police came. I wasn't given any traffic tickets, but a ambulance drove by and the officer pulled it over and took the injured people away. I have read the above and 2 proceeding pages of this statement and feel same to be true and correct to the best of my knowledge and belief.
The statement is obviously artful. It denies agency. It denies express permission from the owner of the vehicle, raising questions of coverage under the omnibus clause, which requires coverage of all persons driving the insured vehicle with permission. It challenges liability in its description of how this rear-end hit occurred. It exculpates both the driver and the owner. It is, in short, a defense dream.
The issue, however, is whether this statement justified the trial court's Conclusion that it dispelled any question of fact as to Stevenson's agency. We are satisfied that it did not.
New Jersey law recognizes a presumption that the driver is acting as the owner's agent. Kauffman v. Gullace, 252 N.J. Super. 467, 472-473, 600 A.2d 143 (App. Div. 1991). The presumption is, of course, rebuttable. Its effect is to discharge the proponent's burden of producing evidence and to shift to the adverse party the burden of coming forward with contrary evidence. N.J.R.E. 301. Moody relied on Stevenson's statement as the contrary evidence here, and the Judge accepted it as conclusive. That was error. First, evidence submitted in support of a motion for summary judgment must be admissible. Sellers v. Schonfeld, 270 N.J. Super. 424, 427, 637 A.2d 529 (App. Div. 1993). Compare R. 1:6-6 (the facts asserted in an affidavit in support of a motion must be "admissible in evidence"). There is, obviously, a substantial question as to the admissibility in evidence of Stevenson's statement. Second, even if Stevenson's statement were to be held admissible, its assertions are not conclusive. It does no more than raise a factual issue as to plaintiff's entitlement to the benefit of the presumption.
As to admissibility, it is clear that that determination is informed by N.J.R.E. 804(b)(6), formerly Evid. R. 63(32). N.J.R.E. 804(b)(6), encaptioned "Trustworthy statements by deceased declarants," conditions admissibility first upon the statement having been "made in good faith upon the declarant's personal knowledge" and second upon the statement having been made "in circumstances indicating that it is trustworthy." The trial Judge did not address either of these conditions. He did not in fact address the issue of admissibility at all. We are satisfied that that must be done by way of a preliminary hearing pursuant to N.J.R.E. 104(a).
With regard to the second condition required by N.J.R.E. 104(a), we think it plain that the trustworthiness of the circumstances surrounding Stevenson's statement, taken by Moody's insurer's investigator in almost entirely unknown circumstances, is hardly a foregone Conclusion. At least for purposes of this motion, it was, as we have noted, corroborated neither by Moody herself, who submitted no supporting affidavit, nor by Stevenson's passenger, who was identified in the police report of the accident, nor by whomever it was who had taken the statement and had witnessed the statement. It was not authenticated. Clearly all of the circumstances surrounding the giving of that statement, including the circumstances we have already identified, must be explored and its inconsistencies with Moody's answers to interrogatories *fn3 considered before an admissibility ...