#### Herbert Odell, Respondent, *v.*The Genesee Construction Company, Appellant.

Fourth Department,

May 3, 1911.

Negligence — trial — evidence — indemnity insurance — right of defendant to have jury dismissed.

The fact that the defendant in a negligence action carries indemnity insurance should be kept from the jury; it should not he proved by witnesses or stated by plaintiff’s counsel.

*Where*plaintiff’s attorney in a negligence action proves such fact under the ruling of the court and over objection of the defendant’s attorney, the defendant is entitled to have the jury discharged and have the case go over the term.

*It*seems, that it is proper to ask a juror whether or *not he*is interested as a stockholder or director in any insurance company that insures against accidents.

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.

*George D.*Reed] for the appellant.

*James M. E. 0, 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.

*126The 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 he 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.: “Áre 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 shqwu 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 appeal’, 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 *127was proven in this case by plaintiff’s counsel, under the ruling of the court, against the most vehement protests and oh jectionsby 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 App. Div. 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 he 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 hearing 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 aiiy such doctrine.The same must he true as to the examination of jurors. In a negligence case, counsel for plaintiff very properly desires to he 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 he subject to a challenge for bias or only a' peremptory one. Questions upon the line suggested cannot he said to he improper or immaterial.' This would seem to he true. Well, then, to go a step farther. *128This 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 *toas*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 ha 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 answei-s 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 cleárly incompetent' and immaterial can bad faith be alleged and the counsel and his client be punished therefor.”

This case was cited and a like doctrine held in *Blair*v. *McCormack Construction Co.*(123 App. Div. 30; affd., 195 N. Y. 521, without opinion). Also in *Rinklin*v. *Acker*(125 App. Div. 244).

The question asked by the plaintiff’s counsel in this case was *129under the foregoing authorities perfectly proper, and the objection thereto should have been overruled and an answer taken. There was no reason for limiting the question to an insurance company proved to he interested in the action. There was no occasion for the plaintiff to prove whether any and what insurance company was indemnity for the defendant as to the accident, and it was improper for the court to so rule and thus bring about the controversy which followed and which fully disclosed to the jury that there was indemnity in the case, and clearly by the well-settled law of the State, when such disclosure was made, the defendant was entitled to have the jury discharged and the -case go over the term.

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.