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Odell v. Genesee Construction Co.

Supreme Court of New York, Appellate Division

May 3, 1911

HERBERT ODELL, Respondent,
v.
THE GENESEE CONSTRUCTION COMPANY, Appellant.

APPEAL by the defendant, The Genesee Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 22d day of November, 1910, upon the verdict of a jury for $1,000, and also from an order entered in said clerk's office on the same day denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

George D. Reed, for the appellant.

James M. E. O'Grady, for the respondent.

WILLIAMS, J.:

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event.

Page 126

The action is for negligence. The plaintiff was an employee of defendant and was injured while engaged in his work upon defendant's building. The facts relating to the accident are not necessary to be stated, as a reversal must be had for errors committed before the taking of the evidence began, while the jury was being impaneled. Plaintiff's counsel inquired of a juror, in the presence of the whole jury who sat in the case, viz.: 'Are you interested as stockholder or director in any insurance company that insures against accidents?'

Defendant's counsel objected to this question as incompetent and improper.

The court ruled that the question would be competent if the fact was shown in the case that there was any indemnity held by the defendant, and that plaintiff's counsel might take such course as he desired to prove that fact in order to lay a foundation for the question asked the juror.

Thereupon, under objection, the defendant's counsel was called and sworn and examined at considerable length as to whether the defendant had such indemnity insurance. There were questions asked, objections interposed and remarks by the court, which must have led the jury to believe there was such indemnity and defendant's counsel was trying to cover up and conceal the fact. He was asked to concede the fact of indemnity and refused to do so, and finally the court offered to take the statement of defendant's counsel on the subject, and to grant a motion by him to put the case over the term if he said there was no indemnity. The counsel refused to so state, and asserted that there was, and moved to put the case over because of what had taken place on the ground that the fact of indemnity had been made to appear, and would prevent a fair and impartial trial. The court refused to grant the motion by defendant and continued the trial. Some remarks were made by the court in the charge upon this subject, wherein the fact of indemnity was stated, but the jury were warned against being influenced by the fact in their decision of the case.

It has long been the settled law of this State that the fact of indemnity should be kept from the jury, should not be proved by witnesses or alleged by counsel for the plaintiff, and yet it

Page 127

was proven in this case by plaintiff's counsel, under the ruling of the court, against the most vehement protests and objections by defendant's counsel. This was erroneous. The court seemed to have overlooked and misunderstood the position taken by this court in Grant v. National Railway Spring Co. (100 A.D. 234). Let us recall what was held by us in that case. At the commencement of the trial, a question, substantially like the one plaintiff's counsel asked in this case, was put to a juror. The defendant's counsel objected, and thereupon the court ordered the case over the term and charged the plaintiff with costs. After reviewing some cases already decided the opinion of this court proceeded as follows: 'The asking of a question [of a witness], clearly incompetent, and not for the purpose of eliciting any material evidence, but with the ulterior design of disclosing the fact that an insurance company is interested in the litigation, is condemned. It is only when the question is incompetent and immaterial, however, that the motive of counsel is to be considered. Suppose an insurance company is interested in the action, and a witness is sworn by the defense, and gives important evidence, and he is a stockholder in the insurance company, may not these facts be shown on cross-examination as bearing upon the credibility of the witness and the weight to be given to his evidence, and can such evidence be excluded because of any ulterior motives of counsel to disclose the fact that the insurance company is interested in the case? Clearly not. No court has ever held any such doctrine. The same must be true as to the examination of jurors. In a negligence case, counsel for plaintiff very properly desires to be sure that no person sits on the jury whose business or interests lead him to have a prejudice against negligence cases. Whether his action is against a railroad or other corporation or individuals he ...


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