Kwiatkowski v. John Lowry, Inc.

This is an action brought to recover damages arising out of the alleged negligence of the defendant causing the death of one Stanislaus Kwiatkowski. The case has been tried three times. The first trial resulted in a disagreement. On the second trial a judgment for the plaintiff was reversed by the Appellate Division on the ground that the verdict of the jury was against the weight of evidence. That court, however, held that the statements of the injured man shortly after the accident against his own interest were properly excluded. (See this opinion as reported 248 App. Div. 459 .) The court reversed the judgment for the plaintiff on the ground stated, by a divided court, two of the justices dissenting. (See 251 App. Div. 850 .) The

In the first place, these statements, made both orally and in writing by Stanislaus Kwiatkowski after his injury, were of such a nature that it is very doubtful whether he could have recovered in any action brought by him. All were to the effect that no such accident happened as claimed in this case, that his injuries, if any, were due to a different occurrence altogether, and were due to his own fault. This evidence presented more than mere casual statements; it consisted of full, complete accounts of the accident, a written statement of the place and time, with details and a description by the injured man, designating at the place how and under what conditions he was hurt. Six witnesses were called to testify to these facts, so that it readily appears that Kwiatkowski, if he had lived, would have been confronted with an almost impassable barrier to a verdict in his favor, or, in the words of our statute, the defendant would not have been hable in an action in favor of Kwiatkowski, if he had lived. Perhaps it might be more accurate to say that the defendant, as against Kwiatkowski living, would have had an excellent defense. Has the defendant, by reason of Kwiatkowski’s death, lost this defense? We think not. First let us consider our own statutes and recent amendments.

Littlewood v. Mayor ( 89 N. Y. 24 ) held that a recovery had by the injured person in his lifetime prevented the administrator from maintaining an action for the same cause. The court said, through Rapallo, J.: “ It seems to me very evident that the only defense of which the wrong-doer was intended to be deprived, was that afforded him by the death of the party injured, and that it is,

In 1935 chapter 795 of the Laws of 1935 added sections 119 and 120 to the Decedent Estate Law. It permits the executor or administrator to bring an action for the injuries and expenses sustained by the deceased in his lifetime. This is for the benefit of the estate of the deceased, and the damages of course are limited to the damages and expenses which he sustained. For instance, a man might linger for a year or two after receiving injuries. The cause of action which he had for such pain and suffering and for expenses is not now lost by his death; it survives to his executor. This is a separate, distinct cause of action from that given under section 130,

If this be true, then what happens when we apply section 120 of the Decedent Estate Law? This reads: “ Where an action to recover damages for personal injury sustained before the death of the injured person and a separate action for wrongful death pursuant to section one hundred and thirty of this chapter are pending against the same defendant, they may be consolidated on motion of either party.” That is, they will be tried together as one action. How is it possible on such a trial to apply two different rules of evidence and before the same jury? The evidence of the deceased’s admissions against interest would be admissible as to one cause of action, and be incompetent and excluded as to the other, if the rule of the courts below is to be applied. Of course this would be an impossibility. You cannot admit and exclude evidence in the same trial before a jury. You cannot hold it to be both good and bad, competent and incompetent in the same trial. And if it were done the result might and probably would be inconsistent verdicts; the defendant guilty of no negligence to the deceased in one case — guilty of negligence to the deceased in the other. Our statute says the defendant is liable to the next of kin only where he would have been liable to the

Littlewood v. Mayor (supra) has been followed and was cited with approval in McKay v. Syracuse Rapid Transit Ry. Co. ( 208 N. Y. 359 , 363), where the court said: “ While the measure of damages is different (Code Civ. Proc. § 1904) the right of the personal representative to recover depends solely on the right of the injured person to recover, if living, unless we are to read something into the statute. We fail to perceive any reason to do that which could not be urged with equal force if the Legislature had in terms provided that in such case the action should not abate, but should survive to the personal representative for the benefit of the estate or the next of kin. Moreover, this court has once said (Quin v. Moore, 15 N. Y. 432 ), and once expressly decided (Littlewood v. Mayor, etc., of N. Y., 89 N. Y. 24 ), that the condition upon which the statutory liability depends is the one expressed in the statute.”

In 1880 the New York Superior Court, in Lax v. Forty-second & Grand St. Ferry R. R. Co. ( 14 Jones & Spencer, 448 , 454), in an opinion by the Chief Judge, ruled as follows on this class of evidence: “ In the course of the

Such declarations have been held admissible in other States as against interest. (Walker v. Brantner, 59 Kans. 117 ; Republic Iron & Steel Co. v. Industrial Commission, 302 111. 401.) Other States have ruled such statements receivable upon the ground that the representatives of the deceased and the deceased are in privity (Southern Bell Tel. Co. v. Cassin, 111 Ga. 575 ; Lord v. Pueblo Smelting & Refining Co., 12 Col. 390 ; Helman v. P., C., C. & St. L. Ry. Co., 58 Ohio St. 400 ; Hughes v. D. & H. Canal Co., 176 Penn. St. 254 ); and some have approved the admission of such evidence upon both grounds (Georgia R. R. & B. Co. v. Fitzgerald, 108 Ga. 507 ; Hovey v. See, 191 S. W. Rep. [Tex. Civ. App.] 606). In many jurisdictions statements of the deceased are held not to be admissible against his representatives in an action to recover for death by wrongful act. The grounds of exclusion are not always the same. (Cf. Eldridge v. Barton, 232 Mass. 183 ; Hedge v. Williams, 131 Cal. 455 ; Marks v. Reissinger, 35 Cal. App. 44 ; Jacksonville Elec. Co. v. Sloan, 52 Fla. 257 ; Dowell v. City of Raleigh, 173 N. C. 197 ; Holmes v. Wharton, 194 N. C. 470 ; Murphy v. St. Louis, I. M. & S. Ry. Co., 92 Ark. 159 ; Kansas City So. Ry. Co. v.

As to the text writers, Professor Richardson, in his work on The Law of Evidence ([5th ed.] § 388, p. 296), says: “ These declarations are admissible either as admissions, for the foundation of the action is the injury to the deceased for which he might have sued in his lifetime, or as declarations against interest. Decedent Estate Law, section 130; Hughes v. Delaware & Hudson Canal Co., 176 Pa. 254 .” (See, also, 6 Thompson on Negligence, § 7738; 1 R. C. L. p. 502, § 42.)

[■ For the reasons here given the admissions of Kwiatkowski were competent and should not have been excluded. In this opinion we are referring to evidence for the defense. The respondent has cited numerous cases where such evidence was sought to be given by the plaintiff as part of the res gestas. The res gestae rule has no relevancy here.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Lehman, O’Brien, Hubbs, Loughran, Finch and Eippey, JJ., concur.

Judgments reversed, etc.