Opinion
286 A.D. 926 142 N.Y.S.2d 819 Richard F. SHERIDAN, Appellant, v. Robert SHERIDAN, Respondent. Supreme Court of New York, Third Department July 7, 1955.
Albert Jakobson, Canton (Benedict S. Rosenfeld, Brooklyn, of counsel; Bernard Meyerson, Brooklyn, on the brief), for appellant.
Dunk, Conboy, McKays&sBachman, Watertown, for respondent.
Before FOSTER, P. J., and BERGAN, COON, HALPERN and ZELLER, JJ.
PER CURIAM.
Appeal by the plaintiff from a judgment in favor of the defendant, entered on October 14, 1953, upon a jury verdict, after a trial in the Supreme Court, St. Lawrence County.
The plaintiff and the defendant were brothers. The action was one for personal injury suffered by the plaintiff while he was a passenger in an automobile driven by his brother and owned by their mother. The claim was that, in rounding a sharp curve, the automobile had skidded and had left the road and struck a tree. The question of negligence was a question of fact which was fairly submitted to the jury in a charge to which no exception was taken. We cannot say that the jury's verdict was against the weight of the evidence.
The principal point raised upon appeal by the plaintiff grows out of an incident which occurred during the selection of the jury. After the plaintiff's attorney asked the prospective jurors whether they were stockholders of an insurance company, as authorized by section 452 of the Civil Practice Act, the defendant's attorney stated 'So that there will be no misunderstanding, I don't mind saying that the owner of this car, and likewise the driver, was insured, that there is an insurance company involved.'
The plaintiff's attorney thereupon stated 'I think counsel's original statement was improper. I submit he should not pursue it any further.'
The record shows that, while the court said 'Overruled', the defendant's attorney complied with the request and did not pursue the subject any further. The plaintiff's attorney did not move for a mistrial nor did he request the court to admonish the jury to disregard the statement made by defendant's attorney. The trial proceeded without further reference to the incident until the close of the case. After the summations by counsel, the defendant's attorney moved for a mistrial on the ground that the summation by the plaintiff's counsel had been 'inflammatory, prejudicial, unfair', and that he had made an improper reference to the fact that an insurance salesman had been excused from the jury. In opposition to the defendant's motion, the plaintiff's attorney revived the jury episode, presumably as an offset against the claim that his summation had been improper.
In this situation, it is too late upon this appeal for the plaintiff to claim that he had been prejudiced by the reference to the fact that defendant was insured. In any event, it is difficult to see how the plaintiff could have been prejudiced by the statement. In view of the close family relationship between the plaintiff and defendant, an inference on the part of the jury that the defendant was insured was inescapable. The error, if any, in the statement of defendant's counsel was nonprejudicial.
Judgment unanimously affirmed, with costs.