[116 N.Y.S. 91] Theodore H. Lord, for appellant.
Gilbert D. Lamb, for respondents.
Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.
In these two actions, which were tried together and are brought up on the same record, Ethel Frahm has recovered a judgment for personal injuries suffered by her, and her husband, Stephen Frahm, has also recovered a judgment for expenses incurred by him by reason of his wife's injuries and for the loss of her services. The defendant is the proprietor of a large department store. On November 13, 1906, Ethel Frahm, a customer, entered an elevator car to descend from one floor to another. There were a number of other persons in the car. After the car had come to a standstill at the main or ground floor, and all the other passengers had left, a piece of mortar fell from somewhere above the car and struck Mrs. Frahm on the head. The top of the car was covered with a netting having a two-inch mesh, so that the piece of mortar cannot have been very large, and the physical injury resulting therefrom does not seem to have been serious; but the chief damage for which a recovery has been had appears to have been a mental or nervous shock-what is designated by the physicians as traumatic neurosis-which seemingly has kept Mrs. Frahm in a seriously impaired condition of health.
The record presents a very flagrant instance of a practice on the part of plaintiff's counsel at the trial, which is unhappily becoming too common in accident cases, and which has frequently been characterized by this court and the Court of Appeals as reprehensible. One of defendant'es employ , an assistant superintendent, had been called by defendant and examined as to the condition of the elevator shaft on the day of the accident. Upon cross-examination plaintiff's counsel put to him this question:
" How soon did you communicate with your attorneys in regard to the accident, or with the Casualty Company of America?"
The question was objected to, and the objection sustained. Defendant's counsel asked for the withdrawal of a juror, which was denied, and an exception taken. Later an expert on elevator construction was called as a witness for defendant. He said that he frequently testified in such cases, sometimes for plaintiff and sometimes for defendant, and that in these particular cases the plaintiffs had sought to employ him, but that he had then already been retained by defendant. The plaintiff's counsel thereupon asked:
" As a matter of fact, had the Casualty Company of America already employed you?"
This question was objected to and excluded, and again defendant's counsel asked that a juror be withdrawn upon the ground that the insinuation implied in the question was calculated to prejudice the defendant. This motion was denied, and exception taken.
There was not a particle of evidence in the case to connect the Casualty Company with the action in any way whatever. No ground suggests itself to us, and no plausible ground is suggested by plaintiff, upon which these questions can be justified. Obviously their only [116 N.Y.S. 92] purpose was to suggest to the jury that the defendant was protected in some way by insurance. Of course, it was wholly immaterial whether it was or not, and this the experienced counsel for plaintiff must have known well. If he did not, the exclusion of the first question above quoted was a sufficient indication of the impropriety of reference to the Casualty Company, and the reiteration of the reference in the latter question indicated a deliberate intention to press an unfair advantage.
In Cosselmon v. Dunfee, 172 N.Y. 507, 65 N.E. 494, counsel for the plaintiff asked a witness for defendants whether the latter carried insurance for their employés. The question was objected to, and, of course, excluded. The court took occasion to say:
" The inquiry into the matter of insurance is not material, and the practice of asking a question that counsel must be assumed to know cannot be answered is highly reprehensible, and when the trial court or the Appellate Division is satisfied that the verdict of the jury has been influenced thereby it should, for that reason, set aside the verdict."
In Loughlin v. Brassil, 187 N.Y. 128, 79 N.E. 854, the plaintiffs' counsel in his summing up persisted in referring to the subject of insurance, although admonished by the court that such reference was improper. The Court of Appeals said:
" Under such circumstances the trial court would have been amply justified in correcting much more vigorously than it did the imprudence of counsel, and either the trial court or the Appellate Division would ...