Opinion
Argued October 26, 1937 —
Decided January 26, 1938.
On appeal from the Supreme Court, whose opinion is reported in 118 N.J.L. 420.
For the appellant, Saul Lehr ( Saul Neivert, of counsel).
For the respondent, Edwards, Smith Dawson.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Chief Justice Brogan in the Supreme Court.
I do not subscribe to the view that there was reversible error in the admission of evidence respecting the number of plaintiff's children. That was within the discretion of the trial judge; and it is the firmly established rule that, in the absence of abuse, the exercise of judicial discretion is not assignable as error. This rule was applied in like circumstances by the Supreme Judicial Court of Massachusetts in Cushing v. Jolles, 197 N.E. Rep. 466. Chief Justice Rugg there ruled that it was within the court's discretion to receive such evidence "in order to enable the jury to get in a general way `what sort of a man is on the witness stand.'"
Here, there was a sharply contested issue as to the nature and extent of plaintiff's injuries. He testified that he returned to work before recovery had been effected, due to the fact that he was then the sole support of "eleven persons." There was no motion to strike out this testimony. Even so, I consider it admissible as bearing upon his physical condition after the resumption of his employment. His injuries were severe. He suffered fractures of the skull and of the pelvis; and there was evidence of post-traumatic neurosis and psychosis. The symptoms were largely subjective; and his physician testified that "he insisted on going back to work; he was very much concerned about his family." In such circumstances, there was no prejudicial error in the reception from the plaintiff himself of evidence touching upon the number of his children; and I therefore vote to reverse.
Judge Rafferty joins in this opinion.
For affirmance — THE CHANCELLOR, LLOYD, CASE, BODINE, DONGES, PERSKIE, DEAR, WELLS, WOLFSKEIL, JJ. 9.
For reversal — HEHER, RAFFERTY, JJ. 2.