Opinion
March 6, 1950.
Action by plaintiff Irene F. Hopper to recover damages for injuries sustained by a fall on ice which was on a sidewalk as the result of the alleged negligent maintenance by defendant of an adjacent leader pipe, and by her husband for expenses and loss of services. Judgment for plaintiffs reversed on the law and new trial granted, with costs to abide the event. The findings of fact implicit in the verdict are affirmed. Defendant called one Hansen as a witness to refute denial by the female plaintiff that she had narrated to him a portion of a statement, the body of which had been written by Hansen, which she had signed. It was made clear, by testimony of the witness on direct examination and by statement of defendant's counsel, that the witness was a paid investigator who had acted in the interest of and on behalf of defendant. His status and relationship to defendant was, therefore, established insofar as concerned his credibility predicated upon possible bias or interest. Plaintiffs' counsel, nevertheless, persisted in eliciting from the witness, over objection and exception, the fact that the witness was employed by a named insurance company, which was the insurer of defendant. This employment could not possibly serve to show a greater interest than the admitted status of the witness as a paid investigator for the defendant itself. It served only to bring the element of insurance before the jury. The admission of the proof was reversible error ( Akin v. Lee, 206 N.Y. 20; Rodzborski v. American Sugar Refining Co., 210 N.Y. 262, 267, 268; Clark v. Hasselquist, 304 Ill. App. 41), despite the instruction of the court to the jury to consider it only with respect to the interest of the witness ( Simpson v. Foundation Co., 201 N.Y. 479, 490). In Wood v. New York State Elec. Gas Corp. ( 257 App. Div. 172, affd. 281 N.Y. 797), even though the investigator, prior to his testimony that he was generally employed by a named insurance company, had testified that he was employed by defendant, the question of admissibility of the insurance element was beclouded by the conduct of defendant's counsel in freely admitting the insurance element in summation and endeavoring to capitalize on it.
Although the witness Hansen previously had testified that he was a paid investigator who had acted in the interest of and on behalf of defendant, it was permissible, as further inquiry with respect to his interest or bias reflecting on credibility, for plaintiffs' counsel to elicit the fact that he was employed by a named insurance company which was insurer of defendant. ( Wood v. New York State Elec. Gas Corp., 257 App. Div. 172, affd. 281 N.Y. 797; Young v. Sonking, 275 App. Div. 871.) [See post, p. 1082.]