Opinion
Decided October 6, 1933.
Negligence — Automobile collision at street intersection — Excessive verdict — Improper suggestions by counsel that defendant insured — Charge to jury — Error to follow rule which is subsequently overruled.
1. A verdict will be set aside as excessive where the amount awarded is not warranted by the evidence and it is apparent that it was rendered under the influence of passion and prejudice resulting from the jury concluding from repeated suggestions by plaintiff's counsel that the defendant was insured.
2. Where in his charge to the jury the trial judge follows the rule announced by the Supreme Court in a decision which is subsequently overruled, such charge, in consequence of the later decision, is erroneous and constitutes prejudicial error.
ERROR: Court of Appeals for Erie county.
Messrs. King, Flynn Frohman, for plaintiffs in error.
Mr. John F. McCrystal, for defendant in error.
Edward J. Hartnett brought an action in the Court of Common Pleas against C.B. Bliss and Henrietta I. Bliss to recover damages for alleged injuries claimed to have been sustained by him personally, and for damage to his automobile. At the close of the evidence offered in behalf of Hartnett the action was dismissed as to Henrietta I. Bliss, and the trial proceeded as to C.B. Bliss, resulting in a verdict and judgment against him for $7,000. He now seeks a reversal of that judgment.
Boalt street and Columbus avenue are municipal highways located in the city of Sandusky. The second amended petition of Hartnett alleges, and Bliss in his answer thereto admits, that these two streets intersect, and it is also an admitted fact that Columbus avenue is a main thoroughfare. In the afternoon of July 24, 1930, Hartnett, riding in and operating his automobile, was proceeding easterly on Boalt street, which is not a main thoroughfare, and Bliss was riding in and operating an automobile southerly on Columbus avenue. Each of them was alone, and through the negligence of one or both a collision occurred at the street intersection. We shall not attempt to detail the evidential facts further than to say that the facts in evidence warranted the submission of the issues to the jury, and that on the issue of contributory negligence the verdict and judgment are manifestly against the weight of the evidence.
In this case again arises the present much discussed and argued question as to how far a plaintiff may go in asking questions, either on voir dire or during the progress of the trial, as to the interest of any insurance company. Prospective jurors were not only individually asked the general question of interest or connection with any insurance company, but were also asked the specific question as to any connection with or interest in the Agricultural Insurance Company of Watertown, New York; and these questions could not fail to leave with the average mentally-endowed juror the emphasized impression that the Bliss automobile was protected by this particular insurance company.
There is nothing in the record of the instant case other than implications from the questions asked that any insurance company was interested in the result of the trial, and, therefore, it seems to me that examining prospective jurors on this subject was improper, but since the verdict in the instant case is so excessive as to evidence passion and prejudice in its rendition we shall forego discussing the question further.
The answer of Bliss, filed to the second amended petition of Hartnett, alleges that "the automobile driven by him was the property of the defendant, Henrietta I. Bliss." Whether it was or not, was of no importance, because at no time was it claimed that Bliss, who was the sole occupant thereof at the time in question, was using it for any purpose of, or upon any mission of, Mrs. Bliss. The second amended petition did not so allege, and nobody claimed any such fact. Bliss was called for cross-examination by Hartnett, and was asked a number of questions as to the ownership of the automobile. The following appears in the bill of exceptions:
"Q. Have you had it insured?
"Mr. Flynn: I object.
"Court: Objection sustained.
"Mr. McCrystal: Note an-exception. We expect to show if the witness were permitted to answer, that it was insured.
"Q. Now the further question, if it was insured, who paid for the insurance?
"Mr. Flynn: I object.
"Court: Objection sustained.
"Mr. McCrystal: Note an exception. We expect to show, if the witness were permitted to answer, that Dr. Bliss paid for the insurance."
These questions, of course, were asked in the presence of the jury, and could serve no useful purpose other than to tend at least to induce the belief that a verdict against Bliss would be paid by some insurance company — probably that on which so much stress was laid in the voir dire examination of the jury. And the offers to prove, made presumably in the presence of the jury, the bill of exceptions not indicating otherwise, could serve only to emphasize such assumption and belief. In examining a witness called by Bliss as to whom he had given a written statement before the trial as to the facts relating to the collision, counsel for Hartnett asked these questions:
"Q. Or some member of an insurance company?
"A. Her?
"Q. Yes? A. No, sir.
"Q. He was a stranger to you as far as you know, a stranger that came into town? A. As far as I know.
"Q. You didn't know him at all but you signed a statement for him? A. Yes, Sir."
We are satisfied that these repeated references and intimations as to insurance companies left their imprint on the minds of the jurors, for by no stretch of a normal imagination could a verdict of $7,000 be warranted by the evidence adduced.
Hartnett was 47 years of age at the time of the collision, and was in the business of taking orders for men's clothing for "Richmond Brothers of Cleveland". He returned to work the latter part of October, 1930. He testified that he "made $20, $30 or $60 a week, according to how you take the orders. Some weeks would be good and some bad." An automobile salesman fixed the damage to Hartnett's automobile at $235. The physician valued his services at from $50 to $60. Hartnett after the collision drove his car to his home, and two days later called a doctor for his injury, who, he said, "bandaged it up and told me to rub it and he put some stuff on it himself". The next day the doctor "fetched some splints and put them on". The injury, the physician testified, consisted of a fracture of the tibia, or small bone of the left leg. An x-ray was taken and the doctor testified that it showed the fractured bone to be in good position. Hartnett testified that he was in bed for about six days, after which he said, "I sat around the house in a big chair until I got some crutches", and then "I hobbled around on crutches for, I think, six weeks", and after that used a cane for about five weeks. Thereafter he used neither cane nor crutches, but testified that after walking his ankle and instep became painful and his leg tired. No one testified as to the injury being serious or of long duration, the only testimony on that subject being that of the attending physician who said "there might be some soreness and some weakness for a while in those muscles". It is therefore apparent that the character and nature of the injury to Hartnett, in conjunction with the damage to his automobile, expense for services of his physician, and his claimed loss of earnings while he was recovering, would not warrant a verdict of $7,000 in his favor.
In our judgment the verdict, as we have indicated, is excessive, appearing as it does to have been given under the influence of passion and prejudice, and the only possible reason therefor that we can discover in the record of the trial is that the jury concluded that an indemnity company was bound to pay the amount thereof. So, sometimes it happens that whatever the purpose or motive, the injection by innuendo into a trial of facts assumed as probably or possibly existing, but not in issue or in evidence, reacts like a boomerang to nullify the verdict.
In charging the jury as to the legal effect of the right of way statutes, the trial judge followed the rule announced by the Supreme Court in Heidle v. Baldwin, 118 Ohio St. 375, 161 N.E. 44, 58 A.L.R., 1186. Since the trial of the instant case in the Court of Common Pleas the Heidle-Baldwin decision has been disapproved and overruled by the Supreme Court, Morris v. Bloomgren, 127 Ohio St. 147, 187 N.E. 2, and in consequence thereof the charge on this subject, under this later decision, is erroneous and constitutes prejudicial error.
The judgment of the Court of Common Pleas is reversed and the cause remanded to that court for a new trial.
Judgment reversed and cause remanded.
RICHARDS and WILLIAMS, JJ., concur.