Opinion
April 14, 1989
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Dillon, P.J., Callahan, Green, Pine and Lawton, JJ.
Appeal by plaintiff Grover Simmons unanimously dismissed. Judgment in favor of defendant Donald Fox, doing business as Mr. Fox's Tire, unanimously reversed on the law without costs and new trial granted, in accordance with the following memorandum: Plaintiff Geneva Simmons was injured on May 29, 1982 in Mr. Fox's Tire garage when she was struck by a car owned by defendant Baxter and driven by defendant Ricks. She commenced an action against Mr. Fox's Tire, Baxter, and Ricks, alleging that Ricks and Mr. Fox's were negligent, and that Baxter was vicariously liable for Ricks' negligence because he had given Ricks his consent to drive the car. The jury held only Ricks responsible for plaintiff's injuries and awarded her $10,000.
The court erred in refusing to admit hearsay testimony of statements made by Mr. Fox's employees after the accident. Eric Fox testified that all employees had authority to direct vehicles into the garage. The hearsay statements of Mr. Fox's employees concerning directing Ricks to drive into the garage were admissible against Mr. Fox's as excited utterances. Admissibility is not dependent upon the fact of agency; these statements are admissible to the same extent as if made by a person not an agent (see, Richardson, Evidence § 291 [Prince 10th ed]). The proof at trial indicated that there was a general state of confusion in the garage following the accident, when the hearsay statements were made. We find that "the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection" (People v. Brown, 70 N.Y.2d 513, 519). Since the verdicts against Ricks and Mr. Fox's could have been affected by the foregoing error, the issues of liability and damages must be retried as to both of them (see, Figliomeni v Board of Educ., 38 N.Y.2d 178; Hogue v. Wilson, 51 A.D.2d 424; Mercado v. City of New York, 25 A.D.2d 75).
Accordingly, plaintiff Geneva Simmons is entitled to a new trial against Ricks and Mr. Fox's Tire. Since plaintiff Grover Simmons failed to perfect his appeals, they are dismissed.