Kowler v. National Transportation Co., Inc.

Full title: SIDNEY KOWLER, Respondent, v. NATIONAL TRANSPORTATION CO., INC.…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 14, 1942

265 App. Div. 949 (N.Y. App. Div. 1942)

Opinion

December 14, 1942.

Action to recover damages for personal injuries. Judgment in favor of plaintiff, entered on the verdict of a jury, affirmed, with costs. No opinion.

Lazansky, P.J., Carswell, Johnston and Close, JJ., concur; Taylor, J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum:

Plaintiff was injured in a collision between himself, a pedestrian, and a taxicab of the appellant. A physician, called by appellant testified on direct examination that he examined the plaintiff on behalf of his (plaintiff's) employer, but admitted on cross-examination that he examined plaintiff on behalf of an insurance company named by plaintiff's counsel. It was conceded in a colloquy held in the absence of the jury that this company was the compensation-insurance carrier of plaintiff's employer, and appellant's counsel stated that he had told the physician to say that the examination was made on behalf of plaintiff's employer in order not to disclose that the plaintiff was entitled to workmen's compensation, which we held in Passzehl v. Metropolitan Distributors, Inc. ( 259 App. Div. 1050) was improper and prejudicial when disclosed by the defendant. Appellant was not permitted to explain to the jury why the physician testified in the first instance that his examination was made on behalf of plaintiff's employer. This was error. The door to such explanation had been opened by the plaintiff, who injected the fact of insurance into the case; and since the jury, without more information, could or might infer that the insurance company insured the appellant against liability for the accident, the latter was entitled to show the nature of the insurance. While there was no substantial difference between the statements made by the physician on direct and on cross, if the whole truth had been permitted to be told, the trial judge stated repeatedly in the presence of the jury that there was such a difference and that it was for the jury to determine whether the physician had not intended deliberately to deceive the court and jury. I am of opinion, also, under all the circumstances disclosed in the record, that a new trial should be had in the interest of justice.