Tracey v. Reid

Miller, J.: The plaintifE has recovered a judgment for personal injuries alleged to have been inflicted upon her in the commission of an assault by one of the appellant’s servants. The action was brought against the appellant and one Lyman Gr. Bloomingdale, and it appeared that the appellant, a piano mover, was employed by the • defendant Bloomingdale to move a piano from the premises where the plaintifE lived; that he sent two of his' employees to the place for the purpose, and the plaintiff claims that while there one of them assaulted her. She is corroborated as to the assault by a little girl. The two men flatly contradicted her. The learned trial court dismissed the complaint as to the defendant Bloomingdale, and sent the case to the jury as to the appellant upon two questions of fact, viz., whether the assault was committed, and whether the men were acting within the scope of their authority. Our attention is called to an excéption which is fatal to the recovery. The plaintiff’s daughter, who was not a witness to the transaction, testified that the day following the alleged assault she went to the store of the defendant Bloomingdale and there had a conversation with one of his salesmen. I now quote from the record: “ Q. Tell us all that you said to him and all that he said to you ? [Objected to as incompetent, no proper foundation having been laid and as not binding on either of the defendants. Objection overruled; exception by defendants.] A. Why, this salesman that we bought the piano from took me into the office. I told him just what happened down there, how they abused my mother. Q. Tell what you said ? A. I went in to him and I. started and I said, ‘ Do you send men, when you sell a piano and when people fall in arrears with two or three payments — does a firm like Bloomingdale’s send two burly men to lick and abuse a woman and take the piano away from her, when [398] she had. sent a payment the- previous week ?’ He says, ‘ Ho, we do not.’ He says, ‘We have'no,men in our employ, and if we had we would not keep'them that would, do such a thing.’ ■ * * * ' Q. J. ask you about the conversation that took place between you and this superintendent up in Bloomingdale’s store ? A. That is all there was. Q. Is that all that you remember of ’the conversation ? A. That is all. Q. Let me see if l ean refresh your memory. Did yob tell him anything about what happened the day before at your house ? [Objected to; objection overruled ; exception taken.,] A. I did. Q. What did you tell-him -about what happened• at your house the day before? A. I told him they struck my.mother in the knee with the door, and they, struck her in the chest and knocked her over a chair.” This testimony must all be regarded as in subject to the specific objection that it was not binding on either defendant. (Sherman v. D., L. & W. R. R. Co., 106 N. Y. 542.) The assertion that-the evidence was admitted against one defendant only, is directly opposed to the record, and there is not a suggestion in the record of the theory upon whieh.it Was received. We. may speculate oñ What was in the learned trial, judge’s mind, but such speculation cannot supply an adequate reason for admitting evidence which,-was the. rankest hearsay as to both defendants: The appellant was not required to move to strike out such evidence admitted over his objection, and the only question here is, has the respondent < borne the burden of satisfying us that, this manifest error was harmless? (Gearty v. Mayor, etc., of New York, 183 N. Y. 233.) "The objectionable testimony Was received under a ruling of the court which in effect instructed the'jury'that it was proper evidence, for them to. consider in determining' the issues. The plaintiff' had to establish her case by preponderating proof. 'The testimony of herself and the little girl balanced against the testimony of the two men may have left thé jury in doubt. ■ How are we to say that- the fact, that the plaintiff’s daughter immediately after the’ occurrence went, to the people supposed to have been responsible and there-made a complaint and related the occurrence exactly as the plaintiff testified to- it, did not have the effect of turning the scales in the plaintiff’s favor1? That this, evidence might have prejudiced the appellant is so manifest that I should not dis> [399] cuss it were it not for the assertion that we, looking into this record, would not be, influenced by it,' -therefore the -jury, who must be credited with like common sense, could not have been. If this is to be the rule for determining whether a mistake in admitting evidence is reversible error, it were better, to abolish all rules of evidence. When we ourselves know that it is impossible accurately to gauge the effect of our own conceits and of irrelevant facts upon our own judgment, the absurdity of testing the effect of a given fact upon another mind by the effect which we think it would have upon our own becomes apparent. The test is not, would the evidence have affected us,-but might it have affected another? The plaintiff’s counsel evidently thought that this testimony would help his case, and not satisfied with -one statement of the witness had her repeat her narrative of the alleged assault in substance as the' plaintiff herself testified to.it. Counsel have not infrequently argued in this court that conceded error in the admission of testimony was harmless in. cases in which it was apparent that such testimony was introduced for the sole purpose of improperly influencing the jury by counsel who knew that it was improper. Of course common sense should govern juries, trial judges and appellate courts, but when the trial judge makes such a manifest error in the admission of evidence, must we not disregard our common sense in order to say that the jury may not . have made a like error in considering it ? Applying the rule'of common sense to this question, we all know very well that juries do sometimes give controlling effect to facts and circumstances not regarded by court or counsel as of any moment. The mental processes by which these twelve jurors reached a conclusion are 'not-'photographed in this record, and there, are no data upon which to base a conclusion as to whether they considered the objectionable testimony. But as a legal proposition the reception of such testimony was error which may have harmed the .appellant. Under our system of jurisprudence judicial investigations must be conducted according to settled rules of evidence, and if these .rules are violated appellate courts must reverse unless satisfied .that the error was harmless. I have no quarrel with this system, but am persuaded that justice is better administered by adhering- to settled rules than by brushing them aside upon the theory that our common sense tells us that they are of no moment, [400] and I, therefore, vote to reverse the judgmentand order and to grant a new trial, costs to abide the event. Hirschberg, P. J,,.and Woodward, J., concurred; Gáynor and Rich, JJ., dissented.