Healy v. Rennert

• Citation: 9 N.Y.2d 202,213 N.Y.S.2d 44,173 N.E.2d 777
• Parties: , 173 N.E.2d 777 Denis HEALY, Appellant, v. Jonas RENNERT et al., Repsondents.
• Decision Date: 02 March 1961
• Court: New York Court of Appeals

Page 44

213 N.Y.S.2d 44

9 N.Y.2d 202, 173 N.E.2d 777

Denis HEALY, Appellant, v. Jonas RENNERT et al., Repsondents.

Court of Appeals of New York.

March 2, 1961.

Herbert A. McDevitt and Matthew E. McCarthy, New York City, for appellant.

Joseph Eckhaus, New York City, for respondents.

VAN VOORHIS, Judge.

At the time of the accident in the early morning hours of January 31, 1956, plaintiff was a fireman employed by the Fire Department of the City of New York driving a car owned by the department. This car, a 1953 four-door Ford sedan, which was painted red, was equipped with a bell, a siren, two red fender lights, and an oscillating Mars light on the roof. Acting Battalion Chief Harold Toback, who accompanied plaintiff, was returning with him to the Battalion Headquarters after a fire.

Plaintiff testified that when he was proceeding west on Bergen Street before reaching its intersection with Schenectady Avenue, the traffic light changed to green when he was 50 feet from the corner. Defendant, Arnold Rennert, on the contrary, testified that the light was against plaintiff and in defendant's favor when they collided at the intersection. Because of the accident, plaintiff claimed a compressed nerve injury in his cervical spine, necessitating the use of a cervical collar, as a result of which he was retired from the Fire Department for disability. The verdict of the jury was for the defendants.

Plaintiff testified on cross-examination that he had been with the Fire Department for 18 years and that he would have been eligible for normal retirement in about two years after the accident at half pay. Defendants were permitted on cross-examination to develop that, because of the accident, plaintiff applied for and received immediately a disability retirement pension at three-quarters pay, or a larger pension sooner paid than he could have had without the accident. Plaintiff's counsel objected throughout to this sequence of questioning and, in particular, objected to the crucial question as to retirement at three-quarters pay. He also moved unsuccessfully at the close of the trial to strike such evidence from the record. He argues that the jury may have come to the conclusion that the difference in the amount and time of commencement of the pension that plaintiff is receiving as a result of the accident and what he would have received on normal retirement would more than compensate him for his damages and may, therefore, have rendered a verdict in favor of defendants.

In most jurisdictions the damages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance effected by him and to the procurement of which the wrongdoer did not contribute (13 A.L.R.2d 355). In Standard Oil Co. of California v. United States, 9 Cir., 153 F.2d 958, affirmed 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067, it is stated that in the United States the prevailing rule seems to be that an injured person may recover for wages lost and medical expenses incurred during his incapacity even though such amounts were supplied by insurance or gratuitously. In Capital Products, Inc. v. Romer, 102 U.S.App.D.C. 279, 252 F.2d 843 the court held that the defendant was not entitled to show in mitigation of damages that a fireman had secured medical retirement from the Fire Department at half pay under an established pension system.

For these reasons we consider that evidence concerning the retirement of plaintiff for disability at three-quarters pay was inadmissible and without probative force to affect this cause of action.

For the same reason, plaintiff claims that it was erroneous to have permitted defendants to show that plaintiff was a member of a health insurance plan (HIP). On direct plaintiff testified that he had received medical treatments at the Eastern Parkway Medical Center. Nothing was asked or testified to on direct examination with respect to any health insurance plan. Defense counsel, as he did with respect to the pension, was permitted on two occasions, over plaintiff's objection, to ask whether he was a member of the HIP plan to which he answered that he was. The overruling of those objections was erroneous.

Defendants contend that, since they were not found guilty of negligence, these collateral source issues were never a topic of the jury's deliberation, and hence their submission to the jury could not have been prejudicial. On this aspect of the case we agree with plaintiff's position that they may well have considered that plaintiff had sustained no damage, especially in view of the acceleration and increase in the amount of payments of plaintiff's pension, and may have decided the case on the basis that plaintiff was not harmed rather than on questions of negligence and contributory negligence.

Defendants contend that plaintiff opened the door to the introduction of evidence regarding his pension and HIP insurance. There is no basis for such a contention regarding HIP, although the plaintiff's testimony that on account of this accident he was 'put out' of the Fire Department lent some color to a contention that plaintiff had opened the door to defendants to show the true facts respecting what bearing the accident did have upon his pension rights. Since a new trial must be had in any event, for other reasons, it is unnecessary to decide at this point whether the door was opened, but it is enough to point out that on the retrial the plaintiff should refrain from describing what occurred in that manner. It is sufficient if he testifies that he did not thereafter work in the Fire Department, which is a more accurate and less provocative manner of describing what actually occurred. He should refrain from testifying in words tending to indicate that he suffered some loss of rights in his connection with the Fire Department other than his loss of pay during his remaining tenure.

The trial court erred, furthermore, in instructing the jury with respect to the effect of the accident on plaintiff's pension. The jurors were told correctly that they were not to consider moneys received by him as a pension which were not to be deducted from any award for loss of earnings, but added, at the request of defendants: 'I respectfully request your Honor to charge the jury that if the jury finds that in applying for retirement from the Fire Department the plaintiff was motivated by the fact that basing his application on the alleged injury received in the accident, his retirement would be on the basis of three-quarters of the regular pay as against what he would receive on normal retirement, namely fifty percent of his regular pay, then the jury may find that it was a continuing motive that carried into the claims of personal injuries alleged in this case.'

Plaintiff's counsel excepted to the above instruction. Plaintiff's motivation in applying for a pension had no bearing on the issues in this case. The jurors are likely to have been confused by the instruction, first, that they must not consider plaintiff's disability pension in mitigation of damages, but that they might consider his motives in making the application for a pension. The whole subject should have been removed from the jury.

Another error which plaintiff contends occurred at the trial consists in the exclusion of the testimony of Harold Toback, the Battalion Chief who was a passenger in plaintiff's automobile, in the Magistrates' Court on the trial of the defendant Arnold Rennert. Rennert was tried for having violated the Traffic Regulations of the City of New York, requiring drivers of ordinary vehicles to yield the right of way to an emergency vehicle. Toback testified with regard to the facts of the collision, and was cross-examined by Rennert's counsel. Plaintiff attempted to introduce a transcript of this testimony into...