
    Milagrosa Uy, Respondent, v. Shapmor, Inc., Appellant, and Kirsch Beverages, Inc., Respondent.
    Supreme Court, Appellate Term, First Department,
    January 28, 1965.
    
      Allen M. Taylor and Martin M. Baxter for appellant. Arthur O. Klein and Nathan L. Levine for plaintiff-respondent. Lynch, 
      
      Smith & Kelly (Emile Z. Berman, A. Harold Frost, Leonard A. Sheft and David G. Trager of counsel), for defendant-respondent.
   Per Curiam.

The submission of this case to the jury by the court on the theory of res ipsa loquitur as against the defendant-appellant was proper and the jury’s verdict in favor of the plaintiff might well be sustained. (Day v. Grand Union Co., 280 App. Div. 253, affd. 304 N. Y. 821; Hyams v. King Kullen Grocery Co., 230 N. Y. S. 2d 962, revg..in part 32 Misc 2d 920, affd. 20 A D 2d 657.) However, the statement of the plaintiff, while being questioned by counsel for the codefendant, now defendant-respondent, namely, “I reported it to the manager who took my name and he said, ‘ The insurance man would call on me ’ ” was highly prejudicial to the defendant-appellant and its motion for a mistrial should have been granted (Simpson v. Foundation Co., 201 N. Y. 479).

Were this an automobile accident case affirmance without retrial would be warranted, because it is generally known by the public today that New York State has provided for compulsory liability insurance of automobiles. However, the plaintiff sustained her injuries while shopping in the store of the defendant-appellant and, under the circumstances, it was most improper for the jury to learn of the fact that this store was covered by insurance.

The judgment dismissing plaintiff’s complaint against defendant, Kirsch Beverages, Inc., and dismissing the cross complaint of defendant, Shapmor, Inc., against the defendant, Kirsch Beverages, Inc., should be affirmed, without costs.

The judgment against defendant-appellant, Shapmor, Inc., should be reversed and a new trial ordered, with $30 costs to appellant to abide the event.

Hofstadter, J.

(dissenting). I dissent and vote to affirm. While plaintiff was standing in the cashier’s checkout line in appellant’s supermarket, her right leg was struck by flying glass from an exploded bottle of soda. No evidence was offered by either defendant. .Following a fair charge, the jury returned a unanimous verdict for plaintiff against defendant Shapmor, Inc., the owner of the supermarket. My colleagues order a new trial, not on the merits but because of an inadvertent reference to insurance by plaintiff in answer to a question put by counsel for defendant Kirsch Beverages, Inc.

I cannot agree. The Trial Judge immediately following the incident directed the jury to disregard the statement; and re-emphasized this direction in his charge. The plaintiff’s proof was uncontradicted. The information was not deliberately brought out by counsel for plaintiff — to the contrary, counsel for plaintiff played no part in the incident. The case was not close. In this context, the Trial Judge properly denied the motion for a mistrial; nor may it be said that the incident influenced the verdict of the jury. Where information about insurance is inadvertently volunteered by a witness and not deliberately elicited by counsel, there is no reversible error. (Hager v. Bushman, 255 App. Div. 934; Shork v. Higgins, 157 N. Y. S. 2d 19; Brand v. Mangust Holding Corp., 53 N. Y. S. 2d 882. )

It is everyday knowledge that storekeepers, no less than automobile owners, carry liability insurance. Reference to this subject, unmotivated and unintentional, is not so grievous a fault as to mandate taking the ease from the jury which heard it — particularly when it is forewarned and instructed to disregard it.

Gold, J. P., and Capozzoli, J., concur in Per Curiam opinion; Hofstadteb, J., dissents in Memorandum.

Judgment dismissing plaintiff’s complaint against defendant, Kirsch Beverages, Inc., and dismissing the cross complaint of defendant, Shapmor, Inc., against the defendant, Kirsch Beverages, Inc., affirmed, without costs. Judgment against defendant-appellant, Shapmor, Inc., reversed and a new trial ordered, with $30 costs to appellant to abide the event.  