Wilson v. Wesler, Admx. ( 1927 )

Lillie Wesler, administratrix of the estate of Frank Wesler, deceased, brought an action against Mrs. Edward W. Wilson for injuries, expenses, loss of wages, and for causing the death of said Frank Wesler.

The petition states that the defendant was operating an automobile at Auburn avenue and McMillan street, going in a southerly direction, turning into McMillan street to the east; that she was operating said automobile at an excessive speed, and cut the corner without warning; that she failed to properly turn the corner; turned into the center of the intersection, instead of proceeding on the west side of Auburn avenue to the south side of McMillan street, and then turning; that she failed to operate said automobile in a careful and prudent manner; and that said Frank Wesler was injured, from the effect of which injuries he died.

Defendant, by answer, admits plaintiff's appointment as such administratrix, admits that on September 26, 1922, Frank Wesler was employed by the Cincinnati Traction Company, that the defendant operated an automobile southwardly on Auburn avenue, and denies each and every other allegation of plaintiff's petition.

A verdict was returned for the plaintiff, and this action is prosecuted to reverse the judgment entered on that verdict. But three of the errors assigned in the plaintiff's motion for a new trial were argued in the briefs.

The claim that the verdict was not sustained by sufficient evidence is not tenable.

The assignment of error that counsel for plaintiff were guilty of misconduct in argument to the jury will not be considered, other than to say that no objection was interposed to the statements of counsel at the time they were made; nor was the court requested to caution or instruct the jury on the question of argument, and no exception was taken to any part of the argument of counsel.

The other assignment of error is the misconduct of counsel for plaintiff in apprising the jury of the fact that defendant was protected by insurance against any adverse verdict.

The record discloses that counsel for plaintiff in the trial court, in cross-examining the defendant, asked the following questions:

"Q. Which way was your machine, straight or catercornered, when you passed that car? A. I don't remember just how it was, I just come around the corner.

"Q. You don't remember whether it was straight or catercornered? A. No; I don't remember.

"Q. Didn't you report to your insurance company that you went straight catercornered across that corner? A. No, sir, I did not."

The trial court at that time instructed the jury that the question was improper, and that they should disregard it. The question was improper, as there was no issue to which the testimony was relevant. The purpose of the question was to suggest to the jury that the defendant is protected against loss by an indemnitor, not a party to the cause of action.

Counsel for defendant in error seek to excuse this conduct in asking this question on the ground that it concerned a declaration against interest which an insured may have made to his insurance company, and rely on the case of Goz v. Tenney,104 Ohio St. 500, 136 N.E. 215. In that case, the question made by the pleadings was the ownership of the truck and the agency of the driver. The ownership was denied, and, when the case was reopened, after a motion for an instructed verdict had been interposed, the defendant was asked whether he personally made a written statement to the insurance company as to the ownership of the truck and the employment of the driver.

In the case at bar the plaintiff charged that the defendant operated the automobile, and the answer admits that fact. So that the only purpose for which this question could have been asked was to have it brought to the attention of the jury that an insurance company was defending the action.

The rule is that testimony must relate to the issues made by the pleadings. There was no issue to which this testimony could in the remotest degree be relevant. The rule is stated thus: Testimony that the defendant in an action for negligence is insured in a casualty company, or that the defense is conducted by an insurance company, is incompetent, and so dangerous as to require a reversal, even when the court strikes it from the record and directs the jury to disregard it, unless it clearly appears that it could not have influenced the verdict. Simpson v. FoundationCo., 201 N.Y. 479, 95 N.E. 10, Ann. Cas., 1912B, 321. To the same effect are the following cases: Schmidt v. Schalm, 2 Ohio App. 268; New Ætna Portland Cement Co. v. Hatt (C.C.A.), 231 F., 611; Curran v. Lorch, 243 Pa., 247, 90 A. 62; International Co. v. Clark, 147 Md. 34, 127 A. 647.

In Duke v. Parker, 125 S.C. 442, 118 S.E. 802, the court used this language:

"Such evidence or argument has a manifest and strong tendency to carry the jury away from the real issue and to lead them to regard carelessly the legal rights of the defendant on the ground that some one else will have to pay the verdict."

We repeat and emphasize the rule that all evidence must tend to establish some issue made by the pleadings, and that the injection of facts, not relevant and material to the issue, is error for which the judgment will be reversed.

Judgment reversed.

HAMILTON, P.J., concurs.

BUCHWALTER, J., not participating.