Nowack v. Metro. St. Ry. Co.

• Citation: 166 N.Y. 433,60 N.E. 32
• Parties: NOWACK v. METROPOLITAN ST. RY. CO.
• Decision Date: 16 April 1901
• Court: New York Court of Appeals

166 N.Y. 433

60 N.E. 32

NOWACK

v.METROPOLITAN ST. RY. CO.

Court of Appeals of New York.

April 16, 1901.

Appeal from supreme court, appellate division, First department.

Action by Joseph Nowack, by Barnett Nowack, his guardian ad litem, against the Metropolitan Street-Railway Company. From a judgment of the appellate division (66 N. Y. Supp. 533) affirming a judgment for defendant, plaintiff appeals. Reversed.

This action was brought to recover damages alleged to have been sustained by the plaintiff, when a lad of 12 years, through the negligence of the defendant in running over him with one of its horse cars, and inflicting injuries which resulted in the loss of his right leg. Upon the trial the theory of the plaintiff was that he started to cross East Houston street, in the city of New York, when a horse car of the defendant was approaching from the west, about 75 feet away. He had about 16 feet to go in order to get entirely across the track. Going southerly in a diagonal direction, in order to reach a point further east on the opposite side of the street, where he was called by an errand, his back was partly towards the approaching car. He thought he had time to cross in safety, but after crossing the north rail he was knocked down by one of the horses on the south side of the track and run over by the car. The horses were galloping at full speed under the whip of the driver, and after running over the plaintiff the car went nearly three blocks before it stopped. The theory of the defendant was that the plaintiff was not in front of the horses at any time, and was not crossing the street, but was trying to catch on to the car near the middle, and that after several efforts he fell under the car, the rear wheels of which passed over him. The conflict in the evidence was irreconcilable, for several witnesses were called to sustain the theory of either party. Among them, on the part of the plaintiff, one Klein was sworn, who testified that he was standing on the front platform with the driver, who was whipping his horses, which were running at full speed. He first saw the plaintiff when he was from 12 to 15 feet in front of the horses, between the two rails, and about to cross the south rail. He told the driver to look out for the boy, but the reply was, in substance, ‘Mind your own business.’ On the cross-examination he was asked if before the former trial of the action he tried to induce a woman to swear that she saw him on the front platform and that she refused, but he denied it. On the redirect examination he testified that he knew one Kaufamann, who had been to his house five or six times during the week then past; the first time being on Saturday, a week before, He was asked to state what Kaufmann said to him on that day, but it was excluded. The witness was then withdrawn, and Kaufmann, being put upon the stand by the plaintiff, testified that he was employed by the defendant as an investigator; that his duties were ‘to see to the witnesses and take statements and to interview witnesses,’-those who ‘expect and those who are’ witnesses; and that he had been acting in this case for the defendant. The plaintiff thereupon resumed the examination of Mr. Klein, and asked him to state the conversation that he had with Kaufmann on the Saturday in question; but the defendant's objection as incompetent, immaterial, and irrelevant was sustained, and the plaintiff excepted. After the witness had testified that he had a conversation with Kaufmann on the occasion mentioned in reference to the testimony that he was to give upon the trial, he was asked these questions: ‘What conversation did he have with you in reference to the testimony you were to give upon the trial of this action? Did Harry Kaufmann make any offer to you of money or any other thing in reference to the testimony you were to give upon the trial of this action?’ Each of these questions was objected to upon the ground above stated, the objections were sustained, and the plaintiff excepted separately to each ruling.

Landon, O'Brien, and Haight, JJ., dissenting.Harold Nathan and Frederic E. Perham, for appellant.

Charles F. Brown and Henry A. Robinson, for respondent.

VANN, J. (after stating the facts).

Evidence tending to show that a party to an action tried to bribe a witness to give false testimony in his favor, although collateral to the issues, is competent as an admission by acts and conduct that his case is weak and his evidence dishonest. It is somewhat like an attempt by a prisoner to escape before trial or to prove a false alibi, or by a merchant to make way with his books of account, except that it goes further than some of these instances; for, in addition to reflecting on the case, it reflects upon the evidence on that side of the controversy. ‘Where it appears that on one side there has been forgery or fraud in some material parts of the evidence, and they are discovered to be the contrivance of a party to the proceeding, it affords a presumption against the whole of the evidence on that side of the question, and has the effect of gaining a more ready admission to the evidence of the other party.’ 1 Phil. Ev. (C. & H. Notes) 627. It is not conclusive, even when believed by the jury, because a party may think he has a bad case when in fact he has a good one, but it tends to discredit his witnesses and to cast doubt upon his position. It is for the consideration of the jury, after ample opportunity for explanation and denial, under proper instructions to prevent them from giving undue attention to the collateral matter to the detriment of the main issue. The leading authority in support of such evidence is an English case, decided after careful argument by counsel and upon full discussion by the judges. Moriarty v. Railway Co., L. R. [5 Q. B.] 314. It is also sustained by the cases in this state relating to the subject, some with and some without discussion. Cruikshank v. Gordon, 118 N. Y. 178, 187,23 N. E. 457;Gray v. Railway Co., 165 N. Y. 457, 459,59 N. E. 262; Mather v. Parsons, 32 Hun, 338; Gulerette v. McKinley, 27 Hun, 320; Adams v. People, 9 Hun, 89. It is received even in criminal actions. People v. Rathbun, 21 Wend. 509; Gardiner v. People, 6 Parker, Cr. R. 155, 205; Donohue v. People, 56 N. Y. 208. The same rule prevails in other states, without exception, so far as we have been able to discover. Egan v. Bowker, 5 Allen, 449;State v. Nocton, 121 Mo. 537, 551, 26 S. W. 551;Heslop v. Heslop, 82 Pa. 537, 539;Snell v. Bray, 56 Wis. 156, 162, 14 N. W. 14;Lyons v. Lawrence, 12 Ill. App. 531;People v. Marion, 29 Mich. 31; Com. v. Webster, 5 Cush. 295, 316. The elementary writers sanction it,-some notwithstanding they concede it to be collateral, and others upon the ground that, as it relates to good faith or the intent of a party, it is a material fact, and has a direct bearing on the issue. 1 Tayl. Ev. (9th Ed.) 242; 1 Greenl. (15th Ed.) § 196; Wheat. Ev, § 1265; 1 Starkie, Ev. 437; 11 Am. & Eng. Enc. Law (2d Ed.) 503.

It is claimed, however, that such evidence is not admissible against a corporation without proof of some corporate act expressly authorizing an agent to tamper with witnesses. This is equivalent to claiming that such evidence cannot be received against corporations at all, because, in the nature of things, proof of express authority would be impossible. A corporation can act only through agents, and where a branch of its business, whether broad or narrow, is intrusted to an agent, without any restriction, whatever he does which directly relates to that part of the corporate business, and tends to promote it, is binding upon the corporation. Under such circumstances he has control of the method of action, and that which he does, whether morally right or wrong, within the general scope of the matter intrusted to him, in legal effect is done by the corporation itself. Having authority to accomplish a certain rusult, with no limitation as to the means to be employed, his acts, so far as they directly contribute to that result, even if un lawful, are corporate acts. They are done for the corporation by an agent clothed with general authority to effect a certain purpose, which they aid in attaining. Any admission made by him through acts done to carry on his branch of the business, and which reasonably tend to advance it, is regarded in law as made by the corporate body which au thorized him to act for it with reference to the subject of his employment. Kaufmann was employed to look up and ‘see to’ witnesses for the defendant, so as to enable it to defeat the plaintiff's claim, among others. He was to find witnesses, if possible, who would swear to such a state of facts as would prevent a recovery against the defendant. The method of doing this was left to his judgment and discretion. If he adopted a method not contemplated by the defendant, still it is responsible for what he did, in the line of his employment, to promote its interest. In order to promote its interest, he saw fit, as we must now assume, to use the power intrusted to him by trying to bribe the most important witness for the plaintiff to testify falsely in favor of the defendant. He was employed ‘to see to the witnesses,’ and this was his manner of seeing to them. He was to procure evidence, the method not being specified, and he tried to get it by an unlawful method. The subject was left to his judgment, and he acted according to his judgment. The scope of the business intrusted to him included whatever he thought best to do in order to get the right kind of witnesses. He was not working for himself, but for the defendant; and, as he represented it with reference to...