Bennett v. Hoffman

• Decision Date: 09 April 1923
• Docket Number: 193.
• Citation: 289 F. 797
• Parties: BENNETT v. HOFFMAN.
• Court: U.S. Court of Appeals — Second Circuit

289 F. 797

BENNETT v. HOFFMAN.

No. 193.

United States Court of Appeals, Second Circuit.

April 9, 1923

Cook Nathan & Lehman, of New York City (Edgar M. Souza and Louis M. Loeb, both of New York City, of counsel), for plaintiff in error.

Sydney A. Syme, of Mt. Vernon, N.Y., for defendant in error.

Before ROGERS, HOUGH, and MAYER, Circuit Judges.

MAYER Circuit Judge (after stating the facts as above).

The opposing testimony of witnesses, as to just how or why the collision of the cars occurred, need not be recited. The plaintiff introduced testimony intended to show that Coughlan, the chauffeur of defendant, was driving at a reckless rate of speed, whereas Coughlan testified that he was driving at a rate of about 30 miles an hour. The rate of speed was a critical question in a sharp and close controversy as to the negligence of defendant and the contributory negligence of plaintiff. Coughlan testified on behalf of defendant. On cross-examination he was asked:

'Q. Well, did you state at the scene of the accident after the accident, to a group of men of which Oscar R. Streaker was one-- did you make the statement, ' I guess my boss will stop pushing me; he is always pushing me along to make time?"

To this question the objection interposed by counsel for defendant was properly sustained. Later in the trial, and on rebuttal the deposition of Streaker was read, and the question infra was asked. Although objection to this question was then sustained, the trial judge stated that he would pass on the question later. At almost the close of rebuttal, the question in Streaker's deposition thus objected to was read again and then allowed, and answer made as follows:

'Q. Did you (Streaker) hear the chauffeur say in substance, while you were present and he was sitting on the cushion and in the presence of these others, did you hear him say in substance the following: 'I guess my boss will stop pushing me; he is always pushing me along to make time?' A. Yes.'

The testimony showed that Streaker did not arrive at the scene of the accident until long after the accident. It will be noted that the question does not refer to any acts of Coughlan, but to an alleged admission by Coughlan of instructions given to him by his employer. To allow this question and answer was error for two reasons.

First. The statement of Coughlan was made outside of the scope of his employment, and hence was hearsay as to defendant. Luby v. Hudson River R. Co., 17 N.Y. 131; Anderson v. Rome, W. & O.R. Co., 54 N.Y. 334; Sherman v. D., L. & W.R. Co., 106 N.Y. 542, 13 N.E....