Donovan v. Moore-McCormack Lines, Inc.

266 A.D. 406, 42 N.Y.S.2d 441, 1943 N.Y. App. Div. LEXIS 3579

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1943
• Status: Published

Opinions

Callahan, J.

Plaintiff, a stevedore employed by William Spencer & Son Corporation, was injured on July 8, 1941, while working on a pier in New York City. He has obtained a judgment for damages upon the finding that his injuries were the result of the negligence of defendant’s employees.

The principal claim of error concerns the alleged improper receipt in evidence of a so-called “ consistent ” statement offered by the plaintiff for the purpose of rehabilitating his testimony after the defendant had introduced in evidence a statement made by the plaintiff which was inconsistent with plaintiff’s testimony. The “ consistent ” statement was dated July 14, 1941, whereas the inconsistent statement was dated July 9,1941. The statement of July 9th was made to defendant’s investigator, who called on and interviewed plaintiff in his home the day following the accident. The “ consistent ” statement was made five days later to plaintiff’s employer, and not for the purposes of this action.

If plaintiff’s self-contradiction by the inconsistent statement had been conceded, it might well be that the receipt of th'e consistent statement would have been improper under the circumstances. (Robb v. Hackley, 23 Wend. 50; Crawford v. Nilan, 289 N. Y. 444.) In the case last cited, it is to be noted that the so-called consistent statement was made on the day of the trial. In the present ease the testimony shows that plaintiff denied the accuracy of the alleged inconsistent statement which had been written out by defendant’s investigator. When asked whether he had said in the inconsistent statement that warning had been given to him at the time of the accident, his answer was “ I must have.” He was then asked whether such statement was true, and he said “ Well, I don’t know whether I said it or whether he put it down there. I did not write it.” Later, his answers to questions concerning the alleged self-contradictian were to the effect that if such matters were in the papers he must have said them. He also testified that he did not take much stock in the statement at the time it was given, and that defendant’s representative talked him into giving it. Under these circumstances, we deem that the issue as to the accuracy of the inconsistent statement was an issue of fact for the jury, and the receipt of the “ consistent ” statement would be justified, as it might have some probative force on the issue mentioned. This would be especially so in view of the fact that the two statements were made at about the same time, and the so-called “ consistent ” statement was made to plaintiff’s employer and not for the purpose of this action. (4 Wigmore on Evidence [3d ed.] § 1126.)

We are cognizant of the prevalence of the practice of having investigators interview injured persons and secure statements from them. Under all the circumstances, we hold that it was not error to receive the “ consistent ” statement in evidence ; or, if error occurred, that it was harmless.

The judgment should be affirmed with costs.