158 N.Y.S. 200 | N.Y. App. Div. | 1916
Plaintiff, while in the employment of defendant as the driver of a coal wagon, was injured by being struck by the crank handle used in raising and lowering the body of the wagon. At the time he was engaged in delivering a load of coal, and having raised the front part of the wagon body by means of the crank handle, had lowered it slightly, whereupon a “dog” attached to the wheel which plaintiff had been turning, and which had apparently engaged in the “ cogs” of the adjacent wheel (thus insuring the immobility of the body of the wagon) suddenly jumped out of the cogs, thereby causing the crank han
The only question in the case which requires consideration necessitates the reversal of the judgment herein. Dr. Stafford B. Smith had been called as a witness for the defense on the question of the nature and extent of plaintiff’s injuries. After he had been cross-examined for some time, he was asked: “Q. You are the physician for the insuring company in this case?” and answered: “I am for Mr. Menkel” (defendant’s attorney). The latter then moved to withdraw a juror, which was denied by the court, whereupon he duly excepted. This motion should have been granted, and its refusal constituted error, calling for a reversal. The courts have repeatedly censured the putting of questions which suggest to the minds of the jurors that defendant was insured in a casualty company and have reversed judgments and granted new trials on that ground alone. (Rodzborski v. American Sugar Refining Co., 210 N. Y. 262; Simpson v. Foundation Co., 201 id. 479; Loughlin v. Brassil, 187 id. 128; Frahm v. Siegel-Cooper Co., 131 App. Div. 747; Hordern v. Salvation Army, 124 id, 674; Branoner v. Traitel Marble Co., 144 id. 569; Donnelly v. Younglove Lumber Co., 140 id. 846; Haigh v. Edelmeyer &
It is quite true that some of these cases were decided before the amendment to section 1180 of the Code of Civil Procedure was enacted by chapter 206 of the Laws of 1911, which took effect September 1, 1911, and provided that “ The fact that a juror * * * in actions for damages for injuries to person or property * * * is a shareholder, stockholder, director, officer or employee, or in any manner interested, in any insurance company issuing policies for protection against liability for damages for injury to person or property, shall constitute a good ground for a challenge to the favor as to such juror.” But this is a general proposition, the only effect of which is to ascertain if talesmen are interested in any casualty company and to make their interest a ground for challenge, presumably because such interest might bias them against any recovery in an accident case, whether defendant was insured or not. It does not give the right to otherwise suggest or to state directly that the defendant in a particular case is insured against loss by reason of accidents caused by him. The first case cited (Rodzborski v. American Sugar Refining Co., 210 N. Y. 262) was decided after the amendment in question took effect. In it the rule laid down in Simpson v. Foundation Company (201 N. Y. 479) was cited with approval: “ There Judge Vann, writing for the court, said: ‘ The circumstances indicate, however, that one object of the questions was to suggest to the jury that the defendant was insured in an accident company in order to induce them to give a larger verdict.’ He further said: ‘ Evidence that the defendant in an action for negligence was insured in a casualty company, or that the defense was conducted by an insurance company, is incompetent and so dangerous as to require a reversal even when the court strikes it from the record and directs the jury to disregard it, unless it clearly appears that it could not have influenced the verdict. ’ ”
In the Rodzborski case, as in this, the plaintiff’s case depended upon his own version as to the happening of the accident. The corroboration in this case is only as to what happened on the preceding day. In both cases there was a
The judgment and order appealed from are reversed and a new trial ordered, with costs- to appellant to abide the event.
Clarke, P. J., McLaughlin, Smith and Davis, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.