225 A.D. 16 | N.Y. App. Div. | 1928
In this action for personal injuries to the plaintiff riding as a passenger in an automobile driven by an agent of the defendants, the jury verdict was in favor of the defendants. We should not interfere with this verdict were it not for certain questions which were asked by the defendants’ counsel in relation to the right of the plaintiff to obtain from his own employer, a corporation, the compensation provided by the Workmen’s Compensation Law.
After it had appeared in the case that the plaintiff’s employer, under the provisions of the Workmen’s Compensation Law, had filed a notice of plaintiff’s injury, and that the plaintiff had himself filed with the Department of Labor a notice of intention to sue third parties, the defendants’ counsel asked the plaintiff on cross-examination this question: “ Q. And you know that you still have a right to take your compensation insurance whether you succeed in this action or not, don’t you? ” This was objected to, the objection was overruled and an exception taken, and the plaintiff answered: “ Perhaps I have; yes.” The defendants’ counsel continued: “ And you know that if that were done, the Zurich Insurane Company would have to pay it, don’t you? A. I suppose they would have to.” The matter did not stop there. The defendants as a part of their case called a representative of the Zurich Insurance Company as a witness and defendants’ counsel asked him among other things about the bill of a doctor who had treated the plaintiff as follows: “ And if there is compensation claimed here finally under the Workmen’s Compensation Law, you will have to pay Dr. Kelly’s bill won’t you — your company? ” To this the witness answered in the affirmative. Further, the defendants’ counsel asked the following questions to which the following answers were made by the witness: “ Q. And if an award is made, you will have it up with the Compensation Commission — and your company will have to pay the doctor’s bill, is that right? A. It all depends upon the circumstances. Q. Have you any doubt in this case if any award is made you will have to pay it? * * * A. It all depends on the outcome of this action. * * * Q. And if an award is made, your company has to pay it unless an appeal is taken, don’t you? A. Yes, sir.” Reference was made to the Workmen’s Compensation Law in the charge of the court to the jury, and the jury were instructed as follows: “ The Compensation Law says * * * a man being injured in the employ
The judgment and order should be reversed on the law and the facts, and a new trial granted, with costs to the appellant to abide the event.
All concur. Present — Clark, Sears, Crouch, Taylor and Edgcomb, JJ.
Judgment and order reversed on the law and facts, and a new trial granted, with costs to the appellant to abide the event.