Forman v. Prudential Insurance Co. of America , 310 Mich. 145 ( 1944 )

Mr. Justice WIEST has written for reversal and a new trial. I concur in that result but on the sole ground that prejudicial error resulted from the admission of testimony which I think was clearly intended to disclose to the jury that plaintiff (or his wife) possessed substantial financial means. This testimony was prejudicial, pertained to collateral matters, and was not competent as bearing upon the issue of whether plaintiff was engaged in a gainful occupation or capable of being so engaged. While Mr. Justice WIEST indicates that such testimony was improper, he does not state that its admission constituted prejudicial error necessitating reversal. This testimony was elicited by defendant's cross-examination of plaintiff and its character is somewhat disclosed by the following portions of such cross-examination:

"Q. Now, what is your present address?

"A. 16189 Wildemere.

"Q. Do you own or rent that home?

"A. I own it."

The foregoing testimony was taken over the objections of plaintiff's counsel; and then again over the objection of plaintiff's counsel the following testimony was taken:

"Q. What was the price of that home?

"A. $6,800."

The impropriety of permitting this testimony to go to the jury, as well as some of the other testimony of like character, is emphasized by the fact that the record discloses plaintiff prior to his disability had been an industrious man with substantial earnings, at times over $100 a week. The issue in this case was whether plaintiff was still suffering disability when defendant discontinued payments in April, 1942, and thereafter; but the transaction above referred to occurred about the middle of 1939. There was no showing that money used in this investment was obtained by plaintiff as the result of his earnings during the period of claimed disability.

Again the record shows that over objection of plaintiff's counsel the following testimony on plaintiff's cross-examination was taken:

"Q. Now, Mr. Forman, along about 1938 or 1939, somewhere along in there, you also bought an interest in a piece of real estate in Pontiac, did you not? * * *

"A. * * * I believe it wasn't in 1938. I was laying in the United States Marine Hospital, and an uncle of my wife's asked me to give him some money to invest in the property, and he got the money and he invested, and he took care of everything. All I did is get a check every once in a while."

This cross-examination then continued:

"Q. And you sold that property in October of 1942?

"A. My wife sold it.

"Q. Oh, you conveyed the property to your wife and then she sold it?

"A. My wife had it all the time. I didn't have anything to do with it.

"Q. But you gave the money to your wife's uncle to buy it?

"A. The money is my wife's money, too.

"Q. But you gave it to her uncle?

"A. Certain money I had at that time, some money was in my name. * * *

"Q. Well, I will ask you if this is your wife's signature — referring to Exhibit 14 (a deed to Pontiac real estate).

"A. It is."

Thereupon the deed was offered and received in evidence over objection of plaintiff's counsel. There is further testimony of this character; and we quote it in part:

"Q. You also have an interest in the Deep Rock Oil Corporation, do you not (plaintiff's counsel objected on the ground the testimony sought ``has no bearing on any issue in this case')? Objection overruled.

"A. My wife has $1,500."

It is quite inconceivable that the cumulative result of the testimony of the type above quoted did not have an effect which in the eyes of the jury was prejudicial to the plaintiff. Substantially such was the holding in Sovereign Camp of theWoodmen of the World v. Douglas (Tex.Civ.App.),172 S.W.2d 982; and Erreca v. Western States Life Ins. Co., 19 Cal. 2d 388 (121 Pac. [2d] 689, 141 A.L.R. 68). We quote from this latter case, p. 397:

"The insurer also stresses the magnitude of the respondent's enterprise and his income therefrom. Such matters have no proper place in the determination of whether respondent is totally disabled from performing remunerative work. Disability insurance is designed to provide a substitute for earnings when, because of bodily injury or disease, the insured is deprived of the capacity to earn his living. * * * It does not insure against loss of income."

In this jurisdiction it has been quite uniformly held that, if otherwise irrelevant, admission of testimony as to a litigant's wealth tends to create prejudice the same as testimony of poverty tends to create sympathy; and in either case constitutes reversible error. See Bennett v. Beam, 42 Mich. 346 (36 Am. Rep. 442); Johnson v. Henry, 127 Mich. 548;Harker v. Bushouse, 254 Mich. 187, and cases cited therein.

I concur with Mr. Justice WIEST'S holding that under the record in this case plaintiff's motion for judgment non obstanteveredicto was properly denied and also with the holding that the burden of proof was on plaintiff.

Because of the prejudicial error in the receipt of testimony, the judgment entered in the trial court is reversed and a new trial ordered. Appellant may have costs in this Court.

STARR, BUTZEL, SHARPE, and REID, JJ., concurred with NORTH, C.J.

BUSHNELL, J., did not sit.