Summary
In Donnelly v. Younglove Lumber Co. (140 App. Div. 846) the court said: "It is well settled that the admissions of an agent or officer are not admissible except when made as part of the res gestæ or in the performance of his duties as agent or officer. (First Nat. Bank v. Ocean Nat. Bank, 60 N.Y. 278; National Bank of Rondout v. Byrnes, 84 App. Div. 100.) It is an old doctrine from which there has never been a departure.
Summary of this case from Wagner v. Clausen Son Brewing Co.Opinion
November 16, 1910.
Warnick J. Kernan, for the appellant.
F.E. Moyer and John T. Morrison, for the respondent.
The plaintiff while working upon a planer was injured by his fingers coming in contact with its knives, and this action was brought to recover for the injury, the plaintiff claiming that it was caused by the negligence of the defendant, a corporation organized under the laws of this State.
A careful study of the evidence seems to lead to the conclusion that the proof was insufficient to justify the jury in finding that the defendant was negligent or that the plaintiff was free from contributory negligence. It is, however, not needful to determine these questions, for it is clear that the court erred in receiving the statements or admissions made by Snyder, the defendant's general manager, not authorized by the defendant, or made in the performance of his duty.
It is well settled that the admissions of an agent or officer are not admissible except when made as part of the res gestæ or in the performance of his duties as agent or officer. ( First Nat. Bank v. Ocean Nat. Bank, 60 N.Y. 278; National Bank of Rondout v. Byrnes, 84 App. Div. 100.)
It is an old doctrine from which there has never been a departure. ( Manhattan Life Ins. Co. v. Forty-second St. Grand St. Ferry R.R. Co., 139 N.Y. 146.)
It was not admissible, as claimed by the respondent, to show knowledge of the superintendent. The knowledge of an officer or agent after the transaction is of no materiality whatever, and his declaration then made of his previous knowledge is as purely hearsay as a declaration of any previous act. ( Fox v. Village of Manchester, 183 N.Y. 141.) Another error is alleged upon this appeal, which of itself requires reversal of the jury.
The plaintiff was permitted to state that some time after the accident he asked Snyder if he was insured, and if he had the men insured, and "He said: `No, sir, we are insured.'" The defendant's counsel thereupon moved to strike out the conversation, and it was stricken out. The defendant's counsel then asked to withdraw a juror, and have the case declared a mistrial. The application was denied by the court, with the remark to the jury: "It seems to me, and probably does to you, a little foolish, but we are governed by the rules of the higher court, and counsel for the defendant has a right to insist upon our keeping within such rules, but you must disregard whatever the witness said. I strike it from the record and you should not take any notice of it."
Later in the trial evidence of the same character and more objectionable was admitted. Dr. Hogan, a witness on behalf of the plaintiff, was permitted to state that a short time after the accident he asked the general manager "about the bill and stated that the agent of the insurance company assured me that I would be paid for my services. He said, Well, I had better write them. He did not feel like doing anything about it." The defendant's counsel moved to strike out the conversation and again requested that a juror be withdrawn and the trial declared a mistrial. The application was denied and the defendant's counsel excepted.
There can be no question but that this conversation was offered for the purpose of informing the jury that the defendant was indemnified. The law is well settled that it is improper to show, in an action for negligence, that the defendant is insured against loss in case of recovery against it on account of negligence. ( Wildrick v. Moore, 66 Hun, 630; Manigold v. Black River Traction Co., 81 App. Div. 381; Cosselmon v. Dunfee, 172 N.Y. 507; Loughlin v. Brassil, 187 id. 128.) We are satisfied that the verdict of the jury was influenced by this evidence, and it should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.