Abrams v. Gerold

McNally, J. Defendant Roseann Gerold appeals from so much of a judgment, after a jury trial, which adjudged that plaintiffs recover against her. By stipulation all parties agreed in the event of a finding of liability that the plaintiff Vicki Abrams would have a judgment against Roseann Gerold, the Hertz Corporation, Spiro-Wallach Company, Inc. and William Frost in the sum of $36,250 and that plaintiff Joan Gerold would recover against the same defendants the same sum, to wit, $36,250. The judgment so far as appealed from should be reversed on the law and the facts and vacated as it relates to defendant-appellant Roseann Gerold and a new trial directed on the issue of liability as to defendant-appellant Roseann Gerold, with costs to abide the event. The damages were stipulated and the sole issue litigated was the liability of the- defendants. There was no issue as to the contributory negligence of the plaintiffs who were passengers of the vehicle operated by appellant. Appellant claimed the lights favored her crossing of the intersection and barred defendant Frost, the operator of the truck from entering the intersection. The evidence of the disinterested witnesses supported appellant’s claim. The principal thrust of the defendants other than the appellant was that all the defendants were liable. Defendants-respondents, therefore, repeatedly asserted during the trial, summation and argument that any degree of negligence on the part of the appellant was enough to sustain a verdict against her. In the circumstances, vis-a-vis the defendants, the appellant was under the burden of establishing her freedom from the slightest degree of negligence. A portion of the plaintiffs’ bill of particulars containing numerous specifications of alleged negligence on the part of the appellant was received in evidence under the following conditions. During appellant’s cross-examination, she was asked whether she was aware that her sister Joan had made specific complaints in the bill of particulars concerning the alleged negligence of Roseann in causing the accident. Their father, Joseph N. Gerold, had verified the bill of particulars, Joan at that time being a minor. Mr. Gerold was not present at the occurrence and his statements were both hearsay and conclusory. The error was compounded by questioning of trial counsel for defendants-respondents broadly implying* that the said allegations were the result of talks with the appellant. This hearsay was improperly tendered as declarations by the appellant against her interest. (Green v. Downs, 27 N Y 2d 205, 209; Garmon v. Mordente, 32 A D 2d 532; Kurdilla v. Schwartz, 33 A D 2d 573.) [393] On cross-examination of appellant’s witness, Deborah Drisler, it was brought out that she had come from Florida the night before in order to testify and had a, conversation with an assistant for appellant’s trial counsel the following morning. She was asked whether the assistant had discussed with her the color of the traffic light at the time of the accident. The cross-examination was as follows: “ Q. I am just asking you about a conversation you had a few hours ago. Did Mr. Drzal [the assistant] tell you that both vehicles were going slowly! A. Yes. “ Q. Did Mr. Drzal tell you which one passed a red light, just yes or no! A. Well, I said — “ Q. Did Mr. Drzal tell you which one passed a red light! A. Yes.” It was then developed that Mr. Drzal had told her that he would see that she was compensated for expenses and lost earnings of about $400, and the cross-examination concluded with the following: “ Q. Well, did he promise to pay you! A. Yes. “ Q. And aside from promising to pay you he told you the other things you mentioned a little while ago, is that correct! A. Yes.” On redirect examination of this witness appellant offered in evidence a signed statement taken from Miss Drisler at her home by a police officer on the day of the accident in which Miss Drisler had stated she was approaching the intersection on G-reen Acres Eoad, that the traffic light was red for her, that she slowed down, and that, when she was about 50 feet south of the intersection, she saw appellant’s car come west on Sydney Place into the intersection where it was struck by the truck coming* south on Green Acres Eoad when appellant’s car was almost through the intersection, and that the truck pushed the car across the intersection. This testimony was consistent with Miss Drisler’s testimony on direct examination. The cross-examination of Miss Drisler, in our opinion, constituted an attack upon the testimony given by her upon direct examination as a recent fabrication and the appellant should have been allowed to introduce a statement consistent with her direct testimony which was made on the day of the accident to a police officer. “ Proof of declarations of a witness * * * made at a time before a motive to falsify exists may be received in evidence after the testimony of the witness is attacked as a. recent fabrication (Moore v. Leventhal, 303 N. Y. 534, 537; Ferris v. Sterling, [394] 214 N. Y. 249, 254; People v. Singer, 300 N. Y. 120, 124).” (Lichtrule v. City Sav. Bank, 29 A D 2d 565.) This case is indistinguishable from Moore v. Leventhal (supra), involving, as here, an intersection accident, and an attack on the trial testimony of a police officer who testified that the plaintiff had informed him on the day of the accident that he was crossing the intersection against the lights. Cross-examination suggested the officer was unable one month before the trial to recall any conversation with plaintiff. On redirect, defendant tendered the written report filed by the officer corroborating his trial testimony. The exclusion of the report was held reversible error. At page 537 the court said: “ ‘ The rule is that where the testimony of a witness is assailed as a recent fabrication, it may be confirmed by proof of declarations of the same tenor before the motive to falsify existed. (People v. Katz, 209 N. Y. 311 * * *.)’”. The fact that on redirect examination Miss Drisler did confirm, in part, the content of her excluded written statement is beside the point. Miss Drisler’s testimony was attenuated by her inability to fully recall the facts of the occurrence and the implication that her recollection may have been influenced by the information furnished by the assistant to the appellant’s trial counsel, and by the reimbursement of her expenses and lost earnings. The rejected written statement was made on the day of the occurrence when it was fresh in the mind of Miss Drisler and before any pecuniary motive was present. In Moore v. Leventhal (supra), it was enough to show a recent affirmation of the failure to recall the occurrence to warrant the admission of the witness’ written report thereof made by the witness soon after the event. Here there was not only an attack on the recollection of the witness but, in addition, the factor of pecuniary gain. Further, in our opinion, the verdict is against the weight of the credible evidence. The only witness who gave any testimony whatever against the appellant was the codefendant Frost. He claimed that the light had been green for Green Acres Road traffic just before he entered the intersection. In fact, he claimed that just before he entered the intersection he could see 100 feet to his left on Sydney Place and he did not see appellant’s car coming. Since the physical facts demonstrate that appellant’s approaching vehicle must have been there to be seen, Frost’s testimony that he “looked in the direction of an approaching car in full view and did not see it ” is “ incredible as a matter of law ”. (Weigand v. United Traction Co., 221 N. Y. 39, 42.)