Beyer v. Keller

Per Curiam. This case again presents the question of whether post-accident statements taken by investigators should be made available in advance of trial at the request of a party. Special Term here granted the plaintiffs’ application and directed that a copy of the statement given by the mother of the injured infant plaintiff be delivered to the plaintiffs’ attorneys. The infant plaintiff, then two years of age, was bitten by a dog owned by the defendant. The child’s mother was an eyewitness to the occurrence. Two days after the incident, and before counsel had been retained, a representative of defendants’ insurance carrier visited the mother and obtained a statement from her without leaving a' copy thereof. It is an examination of this statement which was granted. In the case of Totoritus v. Stefan (6 A D 2d 123, 125) we directed the defendant to furnish to the plaintiff copies of a statement made by the plaintiff to the defendant’s investigator. We then said: “ This holding is consonant with the policy of broadening pretrial discovery”, and we further alluded to “ the danger and unfairness which frequently occur in the taking of statements from laymen by laymen in the absence of counsel or legal advice.” However, in a previous decision, i.e., in the case of Urbina v. McLain (4 A D 2d 589) we refused to grant the inspection of such a statement where it was that of a witness rather than that of a party. In that case the statement was that of an 11-year-old sister of the child for whose wrongful death suit was brought. We there held that because such statement was not evidence in chief we would not consider it as coming within section 324 of the Civil Practice Act which empowers the court in certain circumstances to direct discovery [428] and inspection. However, we believe that we should now take a broader view than was taken by us in the Urbina case, with respect to the availability of pretrial statements in special circumstances. Should such circumstances be found the court would have the power to do so, for, except by our judicial interpretation there is nothing in section 324 which makes it a mandatory condition that the documents sought to be inspected or delivered be evidence in chief. No substantive rights of the parties would be affected if such inspection should be granted. We should not hesitate to grant such relief if- it advances the desired objective of an open and fair trial. In this case the testimony of the mother, who, incidentally, could have been designated as a guardian ad litem for the injured plaintiff had she made that application, is of considerable importance because she was an eyewitness to the accident. The injured party, having been but two years of age at the time of the accident, cannot testify. In reality the mother stands in place of the infant plaintiff. While the statement the mother gave would not be binding upon the child and thus cannot be deemed an admission and be used as evidence in chief, yet, if inconsistent with the testimony which the mother will undoubtedly give, it will have to be considered by the trier of the facts, if offered by way of impeachment. Thus the státement, if not evidence in chief, is at least contingent or probable evidence so as to come within a liberally and broadly construed section 324. The possible dangers of unfairness above alluded to are just as strong here as they would be in a case where a party to the action were the one who gave the statement. We, therefore, believe that in the interest of justice and in furtherance of the policy of more complete disclosures before trial, the position we took in the Urbina case should be broadened to permit the inspection of a statement given by a witness, as well as one given by a party, in circumstances such as these where there is a disability on the part of the injured person to testify and where there is such a close relationship between the witness whose statement was taken and the person injured. To the extent that this holding-conflicts with the holding- in the Urbina case the latter is overruled. Accordingly, the order granting inspection should be affirmed, with costs.