Opinion
Decided March 12, 1934.
Negligence — Action by guest-passenger against automobile driver — Argument to jury — Comment that plaintiff attempting to make friend pay for injuries — And no one offered to compensate defendant for her injuries — Suggestion that insurance company responsible, erroneous, when.
1. Counsel for defendant, in a negligence action by a guest-passenger against the driver of an automobile to recover for injuries sustained while such passenger, may, in argument to jury, properly comment upon the fact that plaintiff was attempting to make his friend pay for the injuries complained of, and that no one had made any voluntary offer to compensate defendant for her injuries or property damage, even though evidence was admitted of a statement made by defendant in plaintiff's presence that an insurance company would take care of plaintiff's expenses.
2. It is error for counsel for plaintiff, in such action, to suggest in his argument to the jury that the defendant will not be made to pay the damages, the inference being that an insurance company is the real party responsible, especially where the liability of the insurance company is not in issue.
ERROR: Court of Appeals for Huron county.
Mr. J.E. Priddy and Mr. C.A. Blackford, for plaintiff in error.
Messrs. Young Young, for defendant in error.
On December 31, 1931, William D. Karg was a guest, with others, in a car being operated by Nelle M. Messinger, traveling from Findlay to Cleveland. When about two miles east of Norwalk, the car left the roadway and went into a ditch, the plaintiff Karg and others being severely injured, it is claimed, by the negligence of Mrs. Messinger in operating the car. Several suits were brought against her by reason of injuries resulting on that occasion, this being one of the actions. On the first trial of this case the jury returned a verdict in favor of Mrs. Messinger, but that verdict was set aside by the trial court. On a retrial of the case the jury returned a verdict in favor of the plaintiff Karg in the amount of $10,000, and this proceeding in error is brought to secure a reversal of that judgment.
The court finds no reversible error in the record in this case except one which relates to what occurred during argument of the case in the trial court, the arguments being fully reported in the record.
The evidence discloses that William D. Karg was taken to a hospital after his injury, and that after being there for some time Mrs. Messinger called on him while Mrs. Karg was present. A witness, who was present at that interview, was called, and the following appears in the record:
"Q. What did she (meaning Mrs. Messinger) say to you? A. She didn't talk to me, she talked in my presence to Mrs. Karg, in front of Mr. Karg, she told her how sorry she was on account of this accident, and told her not to worry about any of the expenses because she would take care of all that.
"Q. Say anything else? A. She said, — she didn't exactly say she would take care of it, she said the insurance company would take care of it."
During the argument of the case counsel for Mrs. Messinger used the following language to the jury:
"Now, for them to attempt to hold this defendant and make her pay for the injuries these people received who were her friends! Who is going to pay her for her injuries? No one is contributing to that. No one has made any voluntary offer to compensate her for her injuries or her husband's, or for the property damage to her car, but Mr. Karg wants to be compensated."
Further along in his argument, after expressing sympathy for Mr. Karg, counsel proceeded:
"I do part company with them when they come into court and when they ask to be compensated by their friends. They were all going to the same place, they were Mr. Karg's guests and friends and were going to his home, and this unpleasant thing happened that she could not help."
The foregoing is all that was said on this subject by counsel for Mrs. Messinger, and the argument was entirely proper.
In argument by counsel for Karg, the following occurred:
"She [meaning Mrs. Messinger] is just trying to defend herself, maybe these folks have her scared by trying to make her believe she has to pay * * *.
"Mr. Blackford: I object to this line of argument. You are suing Mrs. Messinger.
"Mr. Young: But you have no right to say we are trying to make Mrs. Messinger pay it.
"Mr. Blackford: She is being sued for $55,000.00.
"The Court: You may proceed, Mr. Young, as far as you have gone.
"Mr. Blackford: Exception."
This is all that occurred on this subject, and counsel for Karg insist that whatever he said was justified by the statements made by counsel on the other side. We do not so read the record. The statements made on behalf of Mrs. Messinger were entirely justified by the record, and Karg was seeking compensation from his friend. It is true that Mrs. Messinger had said, while in the hospital, that the insurance company would take care of it; but that was a matter of absolutely no consequence, so far as the rights of the parties were concerned, and from the nature of things she could not know whether the insurance company would or would not take care of it. As said by counsel, the various actions involved claims for $55,000 against Mrs. Messinger, and the record does not show the amount of the insurance held by her. It might well be that the insurance company would have some defense, or as sometimes happens in these days, it might prove to be insolvent. So far as Mr. Karg was concerned the only claim he had was against Mrs. Messinger, who was the only defendant. Counsel for Karg had no right to suggest to the jury that counsel for Mrs. Messinger had her seared by trying to make her believe she would have to pay, or to suggest to the jury that they were not trying to make Mrs. Messinger pay damages, the necessary inference being from these statements that the real party responsible was an insurance company. The vice in this line of argument is perfectly apparent, and when we consider that there was an abundance of conflict in the testimony on the subject of liability, and that a former jury had returned a verdict the other way, the prejudicial character of the argument is obvious. If, as argued by counsel, they were not trying to make Mrs. Messinger pay, then they should have dismissed their action. The liability or non-liability of an insurance company was not an issue in the case, and in view of the evidence in this record the argument was manifestly prejudicial. The judgment, therefore, must be reversed and the cause remanded for a new trial.
Judgment reversed and cause remanded.
WILLIAMS and LLOYD, JJ., concur.