German-American Insurance Company v. Harper

• Decision Date: 29 March 1902
• Citation: 67 S.W. 755,70 Ark. 305
• Parties: GERMAN-AMERICAN INSURANCE COMPANY v. HARPER
• Court: Arkansas Supreme Court

67 S.W. 755

70 Ark. 305

GERMAN-AMERICAN INSURANCE COMPANY v. HARPER

Supreme Court of Arkansas

March 29, 1902

Appeal from Sebastian Circuit Court, EDGAR E. BRYANT, Judge.

Reversed.

Action by Harper & Wilson against the German-American Insurance Company and others. Judgment for plaintiffs, from which defendants appeal.

Judgment reversed and cause remanded.

Winchester & Martin, for appellant.

It was error to exclude the evidence as to the effect additional insurance would, under the rules of the company, have had on the policy in question. 21 L. R. A. 645. There was prejudicial error in the remarks of counsel for appellee. 67 Ark. 370; 65 Ark. 486; id. 626; 61 Ark. 137.

Hill & Brizzolara, for appellees.

There being sufficient evidence upon which to base the verdict, it will not be disturbed. 51 Ark. 476; 14 Ark. 23. There was no prejudicial error in the exclusion of the evidence complained of. 62 Ark. 203. The court having admonished the jury to disregard the improper argument of counsel, the appellant was not prejudiced. 61 Ark. 130; 58 Ark. 473; 65 Ark. 626; 67 Ark. 365.

WOOD J. RIDDICK, J., dissenting.

OPINION

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 Fort 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: "Colonel 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 Kansas City, etc., R. 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 Union Compress Company 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 otherwise be 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 to that extent, but, as was said by us in Vaughan v. State, we shall not hesitate to reverse when it occurs to us that prejudice has resulted on account of improper argument, although the trial court may have endeavored to remove it." In St. Louis, I. M. & S. Ry. Co. v. Waren, 65 Ark. 619, 48 S.W. 222, this court reversed for improper remarks of counsel which were deemed prejudicial, notwithstanding the lower court told the jury...