Cosar v. Bemo ( 1955 )

WELCH, Justice

(dissenting).

It seems to me there are five questions which are important in this case, and more important as precedent for future trial, as follows:

1. In an automobile negligence action involving a two car collision at a highway intersection where one of the prime issues was which car was negligently driven to cause the accident, is it error for the plaintiff’s attorney to argue and state to the jury as a positive fact that another action involving the same accident brought by another party against the same defendant had already been tried, and there determined that the' defendant in the present action was negligent and that it was his negligence and not the negligence of the other car which caused the collision presently involved?

2. Was such improper argument prejudicial ?

3. Was defendant then entitled to a mistrial before verdict?

4. After verdict, was the error of this improper argument cured by order striking $15,000 from a $38,500 verdict by remittitur or was defendant entitled to a new trial?

5. Can it be said that this improper argument was an invited error and that defendant cannot complain of it because he invited it? The essential facts on this point are that it was a prime issue as to which car negligently caused the intersection collision, and that issue of fact was presented in the instructions to the jury. Defendant contended in pleading and in evidence that the other car was at fault, and in presenting that question or issue to the jury the defendant argued that the collision was the fault of the other car and merely posed the argumentative question as to why plaintiff had not sued the owner and operator of the other car. This is contended by some to be a complete and specific invitation of the improper argument above mentioned.

When plaintiff’s attorney, in his closing argument to the jury, emphatically stated and presented positive detailed and conspicuous facts, bearing directly upon one of the prime fact issues involved in the case, which facts so stated were in no wise presented in evidence, and which facts could not have been admitted if they had been offered in evidence, and which facts so improperly stated were such as would almost certainly influence the jury in its verdict and in the amount thereof, then I think the defendant was entitled to an order of mistrial and that the trial court erred in denying motion for an order of mistrial before jury verdict.

When, after jury verdict, it was apparent that such improper statement and presentation of settled facts did wrongfully influence the jury in its verdict and in the amount thereof, then I think the court erred in overruling defendants’ motion for a new trial on that ground.

I do not think that these errors were cured merely by the reduction of the verdict and judgment from $38,500 to $23,500.

This action involves personal injuries received by plaintiff Bemo in an automobile collision at a highway intersection. Bemo and defendant Cosar were both employees of defendant Dickie Johnson. At the time of the accident they were riding in an automobile owned by their employer Dickie Johnson. Cosar was driving that car and there was a collision with another automobile driven by a Mr. Bush, an employee of Emsco Mfg. Company. In that accident plaintiff Bemo was injured and the driver of the car, Mr. Bush, was killed.

In this action one of the principal issues of contention was whether Cosar was negligent in driving the Johnson car, or whether Mr. Bush was negligent in driving the Emsco car. The defendants here specifically contend that Cosar was not negligent, but that the collision was caused by the negligent driving of the other car. The importance of this issue is further demonstrated or magnified by the fact that the record shows conflicting statements on the part of plaintiff Bemo himself as to whether Cosar then drove the Johnson car at a high and dangerous rate of speed, or whether he then drove slowly and carefully.

At the end of the trial, in the closing argument to the jury for defendant, his attorney posed the oratorical or argumentative question as to why the plaintiff in this action had not sued Emsco for his injury and damage in the collision of the two cars instead of suing Johnson and the driver of his car. Thereafter, in closing argument to the jury for plaintiff, his counsel stated to the jury, as a settled fact, that the defendants’ attorneys in this case, naming two of them, “had defended a case at Seminole, Oklahoma, in which the jury had returned a verdict in favor of Mrs. Bush and against these defendants for $48,800.00” and that was stated as one of the reasons why plaintiff had not sued Emsco.

Thus plaintiff’s counsel advised this jury as to a very interesting fact which had not been presented in evidence, and which of course could not have been admitted in evidence if it had been- offered, and the effect of this statement was to advise this jury that it had been formerly judicially determined by jury verdict and judgment that, in this self same accident, Mr. Bush driving the Emsco car was not negligent, and that Mr. Cosar driving the Johnson car was negligent and that his negligence caused the collision.

When prominent counsel for the plaintiff made that statement the jurors were doubtless impressed by it, and I think all would agree that the statement was improper and prejudicial. (This is not contradicted by the majority opinion. It is the position of the majority opinion that this answer was sufficiently provoked by defendants’ counsel as to make this an invited error, but I do not believe the mere propounding of this argumentative question was a sufficient justification for plaintiff’s counsel to go to the extent he did go in pointing out to the jury that the prime question which this jury was called on to determine had theretofore been determined by another jury in the same county, and telling how it had been determined by that jury, and the amount of the verdict carried by that former determination of the same vital issue pending in this case.

It is true that when defendants’ counsel ifirst posed the argumentative question there was objection and the -court instructed the jury they should rely only on the evidence in this case to determine the issues, and again when plaintiff’s counsel made the above quoted improper argument the court again instructed the jury to rely only upon the evidence in this case and not to consider any other law suit, but it strains credulity too far to assume that the jury in this case, in its deliberations, could have forgotten or disregarded the striking fact that a former determination had been made of this identical issue, and to the extent of a verdict for $48,800. This brief statement of the trial judge, with nothing more, might have been taken as confirming the truth of the statement as to the former action, though admonishing the jury to disregard that fact.

While the trial court no doubt intended to cure the error I think its reference to “any other law -suit” only tended to emphasize the error. I take this last sentence from the language in Bratt v. Smith, 180 Or. 50, 175 P.2d 444 -448. That decision, by analogy, supports my view here, as do other decisions now cited. In Central of Ry. Co. v. White, 49 Ga.App. 290, 175 S.E. 407, the improper argument referred to other and different negligence actions. There the trial court rebuked counsel for making the improper argument and instructed the jury to disregard it, nevertheless, it was held reversible error to overrule motion for mistrial.

In Gulf, Mobile & Northern Ry. Co. v. Weldy, 195 Miss. 345, 14 So.2d 340, the improper argument referred to a former trial and verdict as to the same facts in issue. In- this case the presentation of defendant’s evidence disclosed that there had been a former trial, but not the result of the former trial. The plaintiff’s improper argument there did not go to the full extent of detailing the result of the former trial as was done in this Cosar case, but counsel for plaintiff did by implication tell the jury that the verdict in the former trial had been for plaintiff. When defendant objected to the argument and the objection was overruled as in this Cosar case, apparently the defendant did not present motion for a mistrial, nevertheless, the improper argument was held to constitute reversible error.

In Louisville & N. Ry. Co. v. Patterson, 77 Ga.App. 406, 49 S.E.2d 218, the improper argument referred to the decision of a companion case arising out of the same accident. There it does not appear whether the jury was instructed to disregard the improper argument or not, it was merely held to be error to refuse to grant a mistrial because of the improper argument.

In Bratt v. Smith, supra, the trial court instructed the jury to disregard counsel’s statement, but nevertheless, it was held error to overrule motion for mistrial.

In Bagully v. Morning Journal Association, 38 App.Div. 522, 56 N.Y.S. 605, the improper argument referred to another and separate suit of the same character as the one on trial, and stated the amount of the verdict. The court held that was improper. Plaintiff’s attorney then withdrew his remarks and asked the jury not to consider them and the court charged the jury not to consider the matters stated. Nevertheless, the appellate court held there was prejudicial error and reversed.

I am convinced that the trial court here should have granted defendants’ motion for a mistrial. It may well be that the trial court recognized the error and prejudice in this improper argument, and that such recognition thereof caused or played a part in causing the remittitur order. The trial court on motion for new trial, overruled the motion, but did require a remittitur of $15,000 of the $38,500 verdict rendered in this case. The record does not affirmatively disclose that this remittitur was based upon this ground of misconduct, but there is nothing else disclosed in the record, or in the majority opinion upon which it could have been based. The judge merely stated that “the court suggests a remittitur of $15,000.00” to which plaintiff’s counsel at once agreed. It is fair to assume that the trial court fully appreciated the error and prejudice of this improper argument to the jury, and observed the effect thereof upon the jury, as demonstrated by its verdict. The apparent desire of the trial court to correct this error is quite commendable, but the conclusion that such an error could be cured by mere remittitur of a minor portion of the verdict cannot be approved by any cited authority. The correction should have been made by granting a new trial.

JOHNSON, C. J., and WILLIAMS, V. C. J., join in these views.