Swanson v. Evans Oil, Inc.

Decision Date05 January 1961
PartiesAnnamarie SWANSON, as Administrator, etc., of Harold S. Swanson, deceased, Appellant, v. EVANS OIL, INC., and Merton C. Byington, Respondents.
CourtNew York Supreme Court — Appellate Division

Shane & McCarthy, Olean, for appellant. David M. Franz, Olean, of counsel.

Kelly & Monighan, Salamanca, for respondents. Thomas L. Kelly, Salamanca, of counsel.

Before BASTOW, J. P., and GOLDMAN, HALPERN, McCLUSKY and HENRY, JJ.

MEMORANDUM.

In this appeal from a judgment dismissing plaintiff's complaint in a death action, the appellant contends that the unanimous jury verdict was prejudicially influenced by improper questions tending to show that the plaintiff was entitled to workmen's compensation benefits and by statements made by defendants' counsel in summation that the defendant had been exonerated by the coroner and the motor vehicle department. There is nothing in the record to justify either the questions or the statements in summation. The attempt to show that the plaintiff was entitled to workmen's compensation was improper. Johnson v. Gianino, 279 App.Div. 760, 108 N.Y.S.2d 895; Lisanti v. William F. Kenny Co., Inc., 225 App.Div. 129, 232 N.Y.S. 103; affirmed 250 N.Y. 621, 166 N.E. 347; Posnick v. Crystal, 181 App.Div. 660, 168 N.Y.S. 868. It was likewise error to state that the motor vehicle department had taken no adverse action. Tyron v. Willbank, 234 App.Div. 335, 255 N.Y.S. 27; Kopp v. Hoffman, 280 App.Div. 954, 116 N.Y.S.2d 194. The improper matter cast upon the defendants the burden of showing that it did not influence the verdict rendered. Manigold v. Black River Traction Co., 81 App.Div. 381, 382, 385, 80 N.Y.S. 861, 863. Where counsel propounds a question which he must be assumed to know cannot be properly answered, the error is not cured by the trial judge's ruling sustaining an objection thereto. Cosselmon v. Dunfee, 172 N.Y. 507, 65 N.E. 494. It was not necessary to move for a mistrial. Smith v. Majestic Iron Works, 2 N.Y.2d 544, 161 N.Y.S.2d 425. Willfulness is a factor to be considered and is demonstrated by repetition of the error. Frahm v. Siegel-Cooper Co., 131 App.Div. 747, 116 N.Y.S. 90. In the present case, it cannot be said that the jury may not have been influenced by the improper matter. The judgment, therefore, should be reversed and a new trial granted.

Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to...

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9 cases
  • State v. Simmons
    • United States
    • Washington Supreme Court
    • 12 Enero 1962
    ...of having to make constant objections. Recent critical comments on this procedure by counsel will be found in Swanson v. Evans Oil, Inc. (1961), 12 App.Div.2d 875, 209 N.Y.S.2d 860; Houston v. Pettigrew (1960) Okl., 353 P.2d 489; Brooks v. Gilbert (1959), 250 Iowa 1164, 98 N.E.2d 309; McCra......
  • McCullough v. Ward Trucking Co., 17
    • United States
    • Michigan Supreme Court
    • 1 Octubre 1962
    ...in summation. The attempt to show that the plaintiff was entitled to workmen's compensation was improper.' Swanson v. Evans Oil Co., Inc., 12 A.D.2d 875, 209 N.Y.S.2d 860, 861.* The act of 1952 says just that. See the first sentence of the fifth paragraph of the section.1 Or in a wrongful d......
  • Peterson v. Zuercher
    • United States
    • New York Supreme Court — Appellate Division
    • 19 Noviembre 1993
    ...availability and suitability of employment in the area that were not supported by any evidence in the record ( see, Swanson v. Evans Oil, 12 A.D.2d 875, 209 N.Y.S.2d 860). The principal issue at trial was the amount to be awarded for plaintiff's future lost earnings, and the misconduct of c......
  • Truilizio v. Predelli
    • United States
    • New York Supreme Court — Appellate Division
    • 11 Abril 1962
    ...under that act in an action by a beneficiary thereunder against a tort-feasor is a prejudicial reversible error. (Swanson v. Evans Oil, Inc., 12 A.D.2d 875, 209 N.Y.S.2d 860; Regan v. Frontier Elevator & Mill Co., 211 App.Div. 164, 208 N.Y.S. 239; Posnick v. Crystal, 181 App.Div. 660, 168 N......
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