German-American Ins. Co. v. Harper

• Decision Date: 29 March 1902
• Citation: 67 S.W. 755
• Parties: GERMAN-AMERICAN INS. CO. et al. v. HARPER et al.
• Court: Arkansas Supreme Court

67 S.W. 755

GERMAN-AMERICAN INS. CO. et al. v. HARPER et al.

Supreme Court of Arkansas.

March 29, 1902.

Appeal from circuit court, Sebastian county, Greenwood district; Edgar E. Bryan, Judge.

Action by Harper & Wilson against the German-American Insurance Company and others. Judgment for plaintiffs. Defendants appeal. Reversed.

Winchester & Martin, for appellants. Hill & Brizzolara, for appellees.

WOOD, J.

Appellees sued upon an insurance policy which contained this clause: "$2,000 total concurrent insurance permitted, including this policy." Subsequent to the issuance of this policy, appellees took a policy in another company for $2,000, which it was conceded avoided the policy sued on, unless the appellant had notice of the additional insurance before the loss, and failed to object to such insurance. Appellant conceded that if its local agent had notice of the additional insurance, and failed to object thereto, the forfeiture was waived. Appellant's local agent testified that he had no notice of the additional insurance before the loss. Witnesses for appellees testified that he had such notice. The issue was sharply drawn on this question of fact. Marshall, the witness upon whom appellant relied to establish the want of notice of the concurrent insurance, resided and was the local agent at Ft. Smith. The cause was being tried on change of venue, at Greenwood. James Brizzolara, one of the attorneys for appellees, in the first or opening argument to the jury, used this language: "Gentlemen of the jury, if you knew Marshall's business methods, you would say: `God save the plaintiffs, and God save all those who deal with him.'" Appellant objected to this remark of counsel, and the court said to the jury: "Col. Brizzolara's remark is entirely improper, and should not have been made, and I now instruct you to pay no attention to it in making up your verdict, and it must not be considered by you, and give it no weight, but your duty is to consider the evidence admitted by the court in the progress of the trial." Col. Brizzolara was not a witness in the case. There was no evidence as to Marshall's business methods, — no impeachment of his business integrity or efficiency, nor of his moral character in the community where he lived. In Vaughan v. State, 58 Ark. 353, 24 S. W. 885, speaking of improper remarks by counsel in argument, we said: "Whenever it occurs to us that any prejudice has most likely resulted therefrom, we shall not hesitate to reverse on that account." In Railroad Co. v. Sokal, 61 Ark. 130, 32 S. W. 497, we said: "Ordinarily, an objection by the opposing counsel, promptly interposed, followed by a rebuke from the bench, and an admonition from the presiding judge to the jury to disregard prejudicial statements, is sufficient to cure the prejudice; but instances sometimes occur in which it is not sufficient." In Compress Co. v. Wolf, 63 Ark. 174, 37 S. W. 877, we said: "Where counsel persevere in saying things that are not pertinent to the issue, and are prejudicial to the other party, the court in civil cases should see that they do not reap any benefit from such statements, even to the extent of setting aside a verdict in favor of the client of the attorney thus offending, if the court should deem that the prejudice cannot be otherwise overcome. There is not wanting high authority for the position that prejudicial statements made in argument are not removed by the rebuke of counsel, and a direction by the court to disregard such statements. Our court has not gone...