11 N.E.2d 563 | NY | 1937
This is an action brought to recover damages arising out of the alleged negligence of the defendant causing the death of one Stanislaus Kwiatkowski. The case has been tried three times. The first trial resulted in a disagreement. On the second trial a judgment for the plaintiff was reversed by the Appellate Division on the ground that the verdict of the jury was against the weight of evidence. That court, however, held that the statements of the injured man shortly after the accident against his own interest were properly excluded. (See this opinion as reported
In the first place, these statements, made both orally and in writing by Stanislaus Kwiatkowski after his injury, were of such a nature that it is very doubtful whether he could have recovered in any action brought by him. All were to the effect that no such accident happened as claimed in this case, that his injuries, if any, were due to a different occurrence altogether, and were due to his own fault. This evidence presented more than mere casual statements; it consisted of full, complete accounts of the accident, a written statement of the place and time, with details and a description by the injured man, designating at the place how and under what conditions he was hurt. Six witnesses were called to testify to these facts, so that it readily appears that Kwiatkowski, if he had lived, would have been confronted with an almost impassable barrier to a verdict in his favor, or, in the words of our statute, the defendant would not have been liable in an action in favor of Kwiatkowski, if he had lived. Perhaps it might be more accurate to say that the defendant, as against Kwiatkowski living, would have had an excellent defense. Has the defendant, by reason of Kwiatkowski's death, lost this defense? We think not. First let us consider our own statutes and recent amendments. *129
Section 130 of the Decedent Estate Law (Cons. Laws, ch. 13) gives an action to an executor or administrator of a decedent who has left him surviving a husband, wife or next of kin, to recover damages for neglect by which the decedent's death was caused against a person who "would have been liable to an action in favor of the decedent by reason thereof if death had not ensued." Nothing in this statute changes the rules of evidence as to liability or has attempted to do so. If the deceased in his lifetime had a cause of action for negligence and could have recovered thereon, the executor or administrator of the estate may maintain an action for the negligence causing his death. The executor or administrator, however, while given this right to maintain the action, can only recover in case the deceased could have recovered, had not death ensued. Always has it been permissible to show that the deceased could not have recovered in his lifetime because of his contributory negligence. (LaGoy v.Director-General of Railroads,
Littlewood v. Mayor (
In 1935 chapter 795 of the Laws of 1935 added sections 119 and 120 to the Decedent Estate Law. It permits the executor or administrator to bring an action for the injuries and expenses sustained by the deceased in his lifetime. This is for the benefit of the estate of the deceased, and the damages of course are limited to the damages and expenses which he sustained. For instance, a man might linger for a year or two after receiving injuries. The cause of action which he had for such pain and suffering and for expenses is not now lost by his death; it survives to his executor. This is a separate, distinct cause of action from that given under section 130, *131
where a different measure of damage is applicable, and which is for the benefit of the husband, wife or next of kin. In this action by the executor or administrator for the benefit of the estate of the deceased there is no doubt at all — in fact it is conceded — that the cause of action which thus survives is the original cause of action which the deceased could have maintained in his lifetime, limited somewhat by his death, in the amount of recovery. In such an action his admissions against interest would be competent as evidence for the defense. Even the courts which exclude the admissions in actions in behalf of the next of kin admit such evidence where the action is brought for the estate of the deceased. (Eldridge v. Barton,
If this be true, then what happens when we apply section 120 of the Decedent Estate Law? This reads: "Where an action to recover damages for personal injury sustained before the death of the injured person and a separate action for wrongful death pursuant to section one hundred and thirty of this chapter are pending against the same defendant, they may be consolidated on motion of either party." That is, they will be tried together as one action. How is it possible on such a trial to apply two different rules of evidence and before the same jury? The evidence of the deceased's admissions against interest would be admissible as to one cause of action, and be incompetent and excluded as to the other, if the rule of the courts below is to be applied. Of course this would be an impossibility. You cannot admit and exclude evidence in the same trial before a jury. You cannot hold it to be both good and bad, competent and incompetent in the same trial. And if it were done the result might and probably would be inconsistent verdicts; the defendant guilty of no negligence to the deceased in one case — guilty of negligence to the deceased in the other. Our statute says the defendant is liable to the next of kin only where he would have been liable to the *132 deceased if living. It is apparent, therefore, that whatever view other States may have taken regarding the admission of this class of evidence in death cases, we must and should admit it. Furthermore, by amendment to section 132 of the Decedent Estate Law: "In every such action now or hereafter pending, in addition to any other lawful element of the damages recoverable, the reasonable expenses of medical aid, nursing and attention incident to the injury causing death paid by the decedent or by a person entitled to the whole or a distributive share of the moneys recovered or for the payment of which such decedent or person is personally responsible, and the reasonable funeral expenses of the decedent, also shall be deemed proper elements of damage." Thus in every death case damages may include sums personal to deceased, in which instance his admissions would be competent for the defense.
Littlewood v. Mayor (supra) has been followed and was cited with approval in McKay v. Syracuse Rapid Transit Ry.Co. (
In 1880 the New York Superior Court, in Lax v. Fortysecond Grand St. Ferry R.R. Co. (14 Jones Spencer, 448, 454), in an opinion by the Chief Judge, ruled as follows on this class of evidence: "In the course of the *133 trial, the defendant was allowed to prove certain declarations of the deceased soon after the accident, which were, in substance, that he jumped off the front platform before the car had lessened its motion. It was objected that this was incompetent, as against the plaintiff — who does not succeed to the action that the deceased might have had in his lifetime, but has an independent statutory action — and that it was hearsay testimony. I am of the opinion that they are admissible, as having been made by the deceased against his interest; he, of course, having full knowledge of the actual occurrence. (1 Greenl. Ev. § 147, etseq.) `The ground upon which this evidence is received is the extreme improbability of its falsehood. (Id. § 148.)'" This case apparently established the practice in the courts until the decisions in this case before us.
Such declarations have been held admissible in other States as against interest. (Walker v. Brantner,
As to the text writers, Professor Richardson, in his work on The Law of Evidence ([5th ed.] § 388, p. 296), says: "These declarations are admissible either as admissions, for the foundation of the action is the injury to the deceased for which he might have sued in his lifetime, or as declarations against interest. Decedent Estate Law, section 130; Hughes v. Delaware Hudson Canal Co.,
For the reasons here given the admissions of Kwiatkowski were competent and should not have been excluded. In this opinion we are referring to evidence for the defense. The respondent has cited numerous cases where such evidence was sought to be given by the plaintiff as part of the res gestae. The res gestae rule has no relevancy here.
The judgments should be reversed and a new trial granted, with costs to abide the event.
LEHMAN, O'BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Judgments reversed, etc. *135