Thiry v. Taylor Brewing & Malting Co. — 37 A.D. 391

Majority

p. 391

Rudolf Thiry, an Infant, by Rudolf W. Thiry, his Guardian ad Litem, Appellant, v. The Taylor Brewing and Malting Company, Respondent.

Headnote

Wegligence— a pedestrian run down by a wagon bearing the name of a brewing company — evidence to show that the wagon was used by the company’s agent and was dricen by one of its employees — scope of the redirect examination of a hostile witness—judgment on the merits, not proper on a nonsuit.

In an action to recover damages for personal injuries sustained by the plaintiff in consequence of his being run down on March 10, 1897, by a truck bearing the defendant’s name, and driven by one Gallagher, it appeared that the defendant, a brewing company, owned a truck, which was used by one Osborne, who paid nothing for the use of it. A letter, dated May 21, 1897, and written by the vice-president of the defendant, stating that Osborne was its agent in New York, was offered in evidence, but excluded, and the secretary of the company testified that Osborne sold ales of the defendant and hilled them in its name, but that he was not an agent of the company, and that he occupied the same relation March 10, 1897, that he did in May. Another witness testified that he dealt with the defendant in February, 1897, and that it sent him two bills (which he identified), the receipts upon which were signed by Osborne; that Gallagher delivered to him the ales which were mentioned in such hills; that on March 10, 1897, Gallagher brought the witness a barrel of ale which was included in one of the bills presented and for which the witness paid Osborne.

Held, that it was error to refuse to allow the plaintiff to put in evidence the bills thus identified by the witness and also the letter of May 21, 1897; that if such evidence had been given there would have been sufficient proof to warrant the jury in inferring that Osborne was the defendant’s agent, and that Gallagher was in its employ.

Upon the cross-examination of the secretary and treasurer of the defendant, who bad been called by the plaintiff and appeared to be very hostile, he testified

p. 392

positively that the company did not employ any person in the city of New York, and that it did not pay any wages to or control or direct the person who drove the wagon.

Held, that the plaintiff's counsel, upon the re-direct examination of this witness, was entitled to ask him whether the defendant delivered ale in the city of New York and why Mr. Osborne was referred to as its agent if it had no employees in that city, and how it was that the defendant delivered ale in the city which it billed and for which Mr. Osborne receipted; and whether the witness did not know as a fact that the defendant sold and delivered ales in that city.

A judgment dismissing a complaint upon the merits cannot be entered upon a nonsuit granted at the close of the plaintiff’s evidence, as the nonsuit is simply a determination that, upon the evidence then presented, the plaintiff has not shown himself entitled to any relief, and does not operate as a final adjudication which would he a bar to another action for the same cause.

Appeal by the- plaintiff, Rudolf Thiry, an infant, by Rudolf W. Thiry, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of February, 1898, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 2d day of March, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.

Julius H. Gohn, for the appellant.

J. Frederic Kernochan, for the respondent.

It was alleged by the plaintiff that, on the 10th of March, 1897, on Second avenue, in the city of New York, he was run down and seriously injured by a truck driven by an employee of the defendant. The allegations of the complaint were denied, and, upon the issue thus formed, the case came to trial in February, 1898. 'At the close of the plaintiff’s evidence the court ordered a nonsuit, and a motion for a new trial upon the minutes was denied. From the judgment and the order denying a new trial this appeal is taken.

By the judgment the complaint of the plaintiff is dismissed upon the merits. Such a judgment is not warranted when a plaintiff is

p. 393

nonsuited The granting of a motion for a nonsuit is simply a determination that, upon the evidence then presented, the plaintiff has not shown himself entitled to any relief, but its effect goes no further than that. It is not a determination that the plaintiff may not be entitled to relief in another action based upon the same right, if he is able to produce sufficient evidence to establish his claim. It amounts simply to an adjudication that in the particular case, .upon the facts which are made to appear on the evidence, the plaintiff is not entitled to recover, and it goes no further than that. This judgment dismissing the complaint upon the merits operates as a final adjudication against the right of the plaintiff to recover under any circumstances, and it is not warranted by the action of the court in ordering a nonsuit. Therefore, if there were no error which required a complete reversal of the judgment, it would be necessary to modify it in that regard.

But, we think, there is serious error which requires that this judgment should be reversed and the plaintiff have a new trial. The plaintiff proved that, on the 10th of March, 1897, on Second avenue, between Twenty-fourth and Twenty-fifth streets, in the city of New York, he was run down by a brewery truck and seriously hurt. The driver was drunk and drove so carelessly that the jury, upon the facts shown in that regard, would have been compelled to say that he was guilty of negligence. It appeared that the defendant’s name was on a board on the side, of the truck. It was made to appear also that the defendant had a truck in this city which was then used by one Osborne, who paid nothing for the use of it. The secretary of the company testified positively that Osborne was not the agent of the defendant; but there was produced in evidence a letter written by the vice-president, dated the 21st of May, 1897, in which he stated that the agent of the company in New York was Charles H. Osborne, and the secretary testified that Osborne occupied the same relation to the company on the tenth of March that he did in May. This letter, however, although identified and shown to have been signed by the vice-president of the company, was excluded when offered by the plaintiff, and the plaintiff excepted. It appeared further from the testimony of the secretary that Osborne sold ales of the defendant and billed them in its name. The plaintiff showed

p. 394

by another witness that lie dealt with the Taylor Brewing and Malting Company in February, 1897, and that they sent him two hills, which were offered, in evidence. He identified the bills and testified that the receipts upon them were the signature of Osborne. He testified that he knew Gallagher, who had been shown to be the driver of the truck which ran down the child; that Gallagher delivered to him the ales which he bought and which were mentioned in the bills receipted by Osborne ; that this driver Gallagher was at his place on the 10th of March, 1897 ; that he then brought the witness a barrel of ale, which was included in one of the bills presented and for which the witness paid Osborne. After having made that proof the plaintiff offered in evidence the bills which had been identified. These were objected to and excluded, and the plaintiff excepted to that ruling. This was substantially all the-evidence received or offered on the part of the plaintiff. The. learned justice who presided at the trial held that the plaintiff had failed to give evidence which would warrant the jury in finding that the driver was in the employ of the defendant at the time of the occurrence.

While it is probable that upon the testimony which the learned trial justice received, the conclusion which he reached was correct, yet there is no doubt that if the evidence offered by the plaintiff and which was excluded upon the defendant’s objection, had been permitted to go to the jury, there would have been sufficient proof of the employment of Gallagher by the defendant to put it to its defense. This evidence was clearly competent. If admitted, it would have shown that Osborne was the agent of the company in May, 1897, and occupied the same position on the tenth of March in that year; that he sold ales of the company, received the pay and receipted for it in the name of the company. It would have shown further that the ales sold by him as such agent were delivered in the company’s truck, which was put at his disposal by it for that purpose ; that that truck was the same one which ran down the plaintiff, and was driven at that time by a person who on that very day was engaged in delivering ales for Osborne, which he had sold for the defendant. If this evidence had been received the jury might, have inferred that the person who drove this truck and who- ran down the plaintiff was in the employ of the defendant. The plain

p. 395

tiff was entitled to have this evidence received, that the jury might consider it. For the error in refusing it there must be a new trial.

The plaintiff called as a witness one Kernochan, who was the secretary and treasurer of the defendant at the time of this occurrence, and Avas the secretary when he Avas savohi as a witness. It ivas clear from his testimony that he was familiar with the business, of the company, and it is very evident, not only from his position,, but from the manner in Avhich he answered the questions asked by the .plaintiff’s counsel, that he was a very hostile witness. After he' had been examined on the part of the plaintiff he Avas cross-examined by the counsel for his own company. Upon that cross-examinasion he testified positively that the company had no place of business in the city of Nbav York on the 10th of March, 1897, nor did it have any persons whom it employed in its business in that city on that day, and that it did not pay any wages to or control or direct the person AAho drove the Avagon. After the cross-examination was finished the plaintiff’s counsel attempted to re-examine the witness on that point, and he was asked whether the defendant delivered ale in the city ? This question the court excluded of its own motion. He was then asked why Mr. Osborne Avas referred to as agent of the company if it had no employees in the city ? This Avas objected to and excluded. He was then asked, if they had no employees in the city, how it was that they deliver ale in the city Avhich they bill and for which Mr. Osborne receipts ? That Avas objected to and excluded. He was then asked if he did not know, as a fact, that they sold and delivered ales in the city. The court excluded that question again of its oAvn motion, and the plaintiff excepted to that as Avell as to the preceding rulings. We think each of these rulings Avas erroneous. While the Avitness was nominally the plaintiff’s Avitness, yet he was in the employ of the defendant and one of its officers, and it is very clear from the evidence that he was entirely devoted to their interest, even to the extent of evading the answers to questions Avhich were put to him by the plaintiff. The testimony which he gave in response to the counsel of his company Avas exceedingly important. If true, it would go far to defeat the plaintiff. The plaintiff was entitled to examine him thoroughly in regard to that testimony by which he was not concluded. (Becker v. Koch, 104 N. Y. 394 .) All the questions excluded Avere within the limits of

p. 396

•a proper cross-examination and it was erroneous not to require them to be answered.

For these errors the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event of the action.

Van Brunt, P. J., .Barrett, Ingraham and McLaughlin, JJ., Concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

Cases cited

Becker v. Koch 104 N. Y. 394 N.Y. 1887-03-01 p. 395