On cross-examination the plaintiff’s witness Darcy, who had been a passenger in his automobile, stated that he had given a statement to someone about the automobile
That was the one and only time the word “ insurance ” was mentioned by any witness and the court is convinced that its mention was a pure inadvertence. The question asked called for a simple “ Yes ” or “ No ” response and the answer that was given was an entirely gratuitous one on the part of the witness.
The surrounding testimony and circumstances indicated сlearly to the court that there was no deliberate attempt made here to divert the minds of the jurymen to the idea of liability insurance and the court is of the opinion that no prejudice resulted to the defendants from this incident. By way of assuring itself that the jury’s deliberations would not be affected by the answer, the court followed the procedure which wTas employed by the trial court in the case of Weisgerber v. Ancona, which was approved by the unanimous opinion of the Court of Appeаls in
The first Court of Appeals precedent for granting a mistrial because of reference to liability insurance made by a witness was handеd down over a half century ago when very few people were covered by such insuranсe. We have come a long way since then, hoAvever. With the advent of the motorcar, liability insurance became more and more a part of our lives, until in 1956 insurance company stаtistics reported that 95% of all automobiles registered in the State of Nbav York Avere covеred by liability insurance and then in that year our State Legislature passed what is known as the Compulsоry Insurance LaAV, A\rhich provides that every application for the registration of a motor vehicle in the State of New York must be accompanied by proof of financial responsibility, that is, by liability insurance.
To contend at this time in the development of our automobile-centered society, that any group of adult citizens in a city like New York which registers over 1,600,000 motor vеhicles every year and which has nearly 2% million licensed drivers Avould
In view of all of this it wоuld seem preposterous to decree a mistrial in an automobile accident case involving a motor vehicle registered in this State for one inadvertent reference to insurаnce in the course of a trial.
A mistrial is an abortion in the law which causes a great deal оf hardship and inconvenience to litigants, witnesses, jurors, attorneys and court personnel. It should nоt be decreed except to prevent a substantial possibility of injustice.
It is not intended by this decision that the rule against mention of liability insurance be diminished in any degree in cases such as thosе involving commercial transactions or in tort cases other than automobile accident eases, but in a case such as this involving an automobile validly registered in the State of New York fоr two years after the effective date of compulsory insurance and wherein there was no deliberate, pointed or repeated reference to liability insurance, the isolated reference to insurance did not justify the extreme sanction of a mistrial. Under the cirсumstances under which we live today, an arbitrary rule mandating a mistrial in every case in which insurancе is mentioned is an anachronism. At the very least the trial court should have the discretion to decide whether in view of all of the circumstances in any given case the defendant has been prejudiced by mention of the word “ insurance.”
For these reasons the motion for a mistrial is denied.