Megginson v. Bilan, a Minor ( 1931 )

An examination of the record discloses that the evidence on the question of liability for the injury sustained by defendant in error was such that the jury, with quite as much propriety and with equal probability of having arrived at the truth, might have returned a verdict in favor of the plaintiff in error, Mrs. Megginson. This situation makes all the more important the statement of the witness as to the telephone conversation had with Mrs. Megginson as to the "insurance company." True, the question evoking the answer may have been proper, assuming, as I do, that counsel. asking the question did not know what the answer was to be. None the less obvious is the fact that none of the testimony quoted in the majority opinion has any probative value; none of it relates to any issue made by the pleadings; all of it leads simply and solely to the final answer informing the jury that Mrs. Megginson carried insurance. To have requested the court to strike the answer from the record, with the formal admonition of the judge to the jury to disregard it, could not and would not deprive the jury of the knowledge thus acquired, and however much we may theorize about it we know that the strong probabilities are that in cases of this sort knowledge that an insurance company, rather than the defendant, must pay the amount of any verdict returned in favor of the plaintiff, does have a prejudicial effect. In the instant case no part of the answer was proper or material and could not in any way rightly assist the jury in determining the liability or nonliability of the defendant.

The instant case is not one where counsel has requested specific action on the part of the court with respect to prejudicial testimony in no way related to the issues involved, and upon exact compliance by the court with the request so made is satisfied therewith and requests no further action by the court, but a case where it was left to the initiative of the court to accept the responsibility and act accordingly, because the testimony was immaterial and prejudicial. Nor is this a case like Frank v. Corcoran, 25 Ohio App. 356, 158 N.E. 501, where for similar and other reasons conversations "containing reference to whether defendant carried liability insurance" were held not prejudicial error. Nevertheless in that case this court said in its opinion, at page 358, "the rule is clear, and the law well settled, that the admission of testimony of this kind is clearly erroneous."

We must, of course, have rules of practice, but those rules should not be so technically inflexible as to serve as an excuse for tolerating a palpably improper admission in evidence of prejudicial facts in no way related to the issues made by the pleadings; the object sought to be attained being a fair, impartial, and unprejudiced trial. In my opinion the trial judge should have acted upon his own initiative and immediately have sought to rectify the error, even though the situation created necessitated the withdrawal of a juror and the continuance of the case, or later, the granting of a new trial.

Although the judgment therein was affirmed for reasons stated in the opinion, it seems to me that what was said by this court in Thatcher v. Pennsylvania, Ohio Detroit Rd. Co., 33 Ohio App. 242, 168 N.E. 859, as to waiving error by failure to object or except, is especially pertinent to the question under discussion. At page 246 of the opinion therein, in which all of the members of this court concurred, it is said: "if misconduct of counsel * * * has improperly influenced the jury * * * the trial judge, regardless of whether objections and exceptions have been noted thereto, has the power to and should grant a new trial." In that case the question related to the alleged misconduct of counsel, whereas in the instant case it relates to the apparently innocent, but none the less harmful, injection into the record of extraneous and prejudicial facts.

In the case of Wilson v. Wesler, Admx., 27 Ohio App. 386, at page 389, 160 N.E. 863, 864, it is said: "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." (Citing a number of cases.) The court, quoting from an opinion of the Supreme Court of South Carolina, Duke v. Parker, 125 S.C. 442,118 S.E. 802, continues: "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."

My conclusion, therefore, is that the judgment should be reversed.