Opinion
January 14, 1971
Appeal from the Niagara Trial Term.
Present — Goldman, P.J., Marsh, Witmer, Moule and Henry, JJ.
Judgment and order unanimously reversed on the law and facts, without costs, and a new trial granted. Memorandum: The only real issue for the jury to pass upon, so far as liability was concerned, was whether the truck owned by Armco was being driven by its employee, Gardner, with its consent, express or implied. Proof of Armco's ownership created a presumption that its truck was being used with its consent (Vehicle and Traffic Law, § 388). However, the presumption is rebuttable ( Leotta v. Plessinger, 8 N.Y.2d 449) and the evidence presented a close question for the jury. Plaintiffs' counsel in his summation stated: "Now, right off the bat let me tell you this — insofar as justice is concerned a verdict against Mr. Gardner alone would be worthless, because Armco is liable. So the verdict without Armco as far as Mrs. Kenneth is concerned is a worthless verdict, a meaningless verdict." This clearly was a reference to the poverty of Gardner and the wealth of Armco which was designed to appeal to the sympathy or prejudice of the jurors and requires a new trial as to Armco. ( Alberti v. New York, Lake Erie Western R.R. Co., 118 N.Y. 77; Depelteau v. Ford Motor Co., 28 A.D.2d 1178.) This introduction of extraneous matter, which may have substantially influenced the outcome, was improper. ( Kohlmann v. City of New York, 8 A.D.2d 598; Horton v. Terry, 126 App. Div. 479.) Additionally, the court received evidence that a warrant was issued for Gardner's arrest; he was extradited and pleaded guilty to driving without a license and leaving the scene of an accident. The arrest and extradition had no bearing on the issues in the case and should not have been introduced into the trial. The convictions for driving without a license and leaving the scene of an accident had no bearing on the issue of liability ( Reitano v. Dobbs, 31 A.D.2d 104; Phass v. MacClenathen, 274 App. Div. 535) such evidence should have been limited to the issue of credibility with explicit instructions to the jury. Gardner's liability was established by overwhelming evidence. However, the reception of this evidence and the statement of plaintiffs' counsel in summation may have influenced the jury to bring in higher verdicts than it otherwise would have. Therefore, Gardner also is entitled to a new trial on all the issues. ( Sierra v. Times Appliances Co., 7 A.D.2d 898.)