In Grant v. National Railway Spring Co. (100 App. Div. 234) the subject of a similar method of examining jurors was discussed.Summary of this case from Rinklin v. Acker
Charles N. Bulger, D.P. Morehouse and L.C. Rowe, for the appellant.
Theodore E. Hancock, for the respondent.
The order appealed from should be reversed, with costs. The action was to recover damages for personal injuries alleged to have been the result of defendant's negligence. The case came on at the Trial Term of the court; the trial was moved and the impaneling of the jury was commenced. Plaintiff's counsel asked the following question: "Q. Are any of the jurymen interested as agents or stockholders in any insurance company insuring corporations against liability for negligence?" The defendant's counsel objected to the question. The court said, "Yes, the case may go over the term if you ask it." The counsel for defendant then asked that the case go over the term on the payment of costs, and the court so ordered.
Plaintiff's counsel asserted the right to ask the question, and thereupon the court said the question was asked in bad faith, with the desire and intent of influencing the jury improperly against the defendant; that such questions had been repeatedly ruled as improper, and the only suitable punishment for asking the question was to put the case over the term and impose the costs upon the side that offended against the ordinary and proper practice. An exception was taken to the ruling, and this appeal raises the question as to the right to make the order.
Before indulging in any general reasoning with reference to the matter, it is well to inquire just what the courts have held on the subject.
In Wildrick v. Moore (66 Hun, 630) the memorandum in the report is merely "that the evidence as to the defendants being insured against loss by injuries to their employees, and the comments thereon by the counsel to the jury, were improper." We have no means of referring to the record in that case, and cannot, therefore, say how the question arose, what the nature of the evidence was, or whether it was competent and material.
In Cosselmon v. Dunfee ( 59 App. Div. 467; affd., 172 N.Y. 507) this question was not considered by the Appellate Division. It does not appear to have been raised by counsel. In the Court of Appeals, however, counsel did suggest the question, and the court said: "We affirm this judgment without opinion, but feel constrained to refer to an occurrence on the trial that has become too frequent in negligence cases. Counsel for plaintiff asked a witness for defendants this question: `Do you know whether they carry insurance for accident to their employees?' This question was objected to as incompetent and objection sustained. While the learned trial judge made a proper disposition of the matter, nevertheless the propounding of the question was calculated to convey an improper impression to the jury. 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 where the trial court or Appellate Division is satisfied that the verdict of the jury has been influenced thereby it should for that reason set aside the verdict." An examination of the record shows that this question, in this case, was entirely incompetent and immaterial.
In Manigold v. Black River Traction Co. ( 81 App. Div. 381), Smith, the defendant's superintendent, was a witness, and testified that he visited the plaintiff before the trial and requested an interview later with reference to a settlement of the case, and that one Dr. Rockwell was with him at the time. On cross-examination the witness was asked who Dr. Rockwell was. The witness replied, a friend of his. Counsel asked who Rockwell represented, and the court sustained defendant's objection thereto. The counsel then asked if Dr. Rockwell did not go there to try and settle with plaintiff, representing an insurance company back of defendant. The court sustained the objection to the question, declared it to be improper, struck out all the questions and answers as to Dr. Rockwell and directed the jury to disregard them. Dr. Rockwell was not a witness in the case, and it was entirely immaterial who he was or whether he represented any insurance company that was interested in the action. It was held on appeal that this was an error requiring a reversal of the judgment, citing and relying on Cosselmon v. Dunfee ( supra), and referring also to Wildrick v. Moore ( supra).
Following these cases are two cases decided by the Appellate Term of the Supreme Court in New York city ( Lipschutz v. Ross, 84 N.Y. Supp. 632, and Lassig v. Barsky, 87 id. 425). These cases cited and relied upon the cases referred to by us above. In the latter case facts are not stated from which we can say whether the examination of jurors and witnesses, which disclosed the fact that an insurance company was interested in the action, was by competent and material questions or not. In the former case, during the examination of jurors, it appeared that one of them was an agent for a company engaged in insuring employers against accidents to employees, and counsel then said he wanted to inquire whether that insurance company was interested in this action. The court said if it was so interested the plaintiff had a right to know it. Objection and exception were taken to the remark of court and counsel. It does not appear from the report what the answer to the proposed inquiry was, or whether the insurance company was so interested. The court on appeal reversed for this alleged error of the trial judge and remarks of counsel.
It will be seen from this examination of the cases, the only ones to which our attention is called by counsel or that we have discovered, that the question here involved has not been settled. Some of the cases cited relate to the taking of evidence, and not the examination of jurors, and as to the taking of evidence the rule is very clearly stated by the Court of Appeals in Cosselmon v. Dunfee ( supra). "The practice of asking a question that counsel must be assumed to know cannot be answered is highly reprehensible." That is, the asking of a question 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 has a right to inquire if any of the jurors are stockholders or employees of railroad or other corporations that have occasion to defend negligence actions. Why? Because such stockholders or employees might well have such prejudice, and whether they admit they have or not, so as to be subject to a challenge for bias or only a peremptory one. Questions upon the line suggested cannot be said to be improper or immaterial. This would seem to be true.
Well, then, to go a step farther. This kind of insurance against loss by employers, by reason of injuries to their employees, has become very general. Innumerable companies and corporations are engaged in this kind of insurance business, and it is not a rare thing for such an insurance company to be interested in negligence actions. Its stockholders and employees, therefore, would be objectionable as jurors to plaintiffs in such actions. May not inquiry be made in any case whether any of the jurors are stockholders or employees of such insurance companies? Is not such an inquiry perfectly proper, competent and material? It cannot be doubted. The inquiry in this case did not imply that such an insurance company was interested in this case. The inquiry was not made as to any company interested in this case, but to any and all such insurance companies. If there was no such insurance company in the case, it could do no harm certainly. If some insurance company was interested in the case, then there was good reason why the plaintiff's counsel should inquire and be certain that no juror interested in that particular insurance company or any other like company was on the jury.
It may be claimed that counsel often make these inquiries when they have no reason to suppose there are any persons among the jurors interested in these insurance companies. The answer is, they do not know, and inquire for information. It is not safe to assume in these times that men summoned upon petit juries may not be interested as stockholders in any companies that are likely to make money and pay good dividends. Men do not disclose to the public where their money is invested. The only safe way is to ask if they have such interests. The questions are proper and competent, and the court may not exclude answers to such inquiries or charge counsel with bad faith or improper motives in making the inquiries. If the questions are proper, it is not important what the motives of counsel may be; only where the questions are clearly incompetent and immaterial can bad faith be alleged and the counsel and his client be punished therefor.
In this case the question was clearly competent and proper and, therefore, regardless of the motives of counsel, the answer should have been received.
The order was erroneously made and must be reversed, with costs.
All concurred; HISCOCK, J., not sitting.
Order reversed, with ten dollars costs and disbursements.