National Sur. Co. v. Morlan, 12702.

• Citation: 13 P.2d 260,91 Colo. 164
• Decision Date: 27 June 1932
• Docket Number: 12702.
• Parties: NATIONAL SURETY CO. v. MORLAN.
• Court: Colorado Supreme Court

13 P.2d 260

91 Colo. 164

NATIONAL SURETY CO. v. MORLAN.

No. 12702.

Supreme Court of Colorado

June 27, 1932

In Department.

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Action by L. A. Morlan against the National Surety Company. From judgment for plaintiff, defendant brings error.

Reversed and remanded.

Blount Silverstein & Rosner, of Denver, for plaintiff in error.

H Berman and Fred N. Holland, both of Denver, for defendant in error.

MOORE J.

Morlan had judgment for $1,500 against the National Surety Company on a burglary insurance policy. The surety company seeks a reversal, contending, among other things, that the misconduct of plaintiff's attorney constitutes reversible error.

An affidavit filed by the attorney for the surety company in support of its motion for a new trial charges that: 'Attorney for plaintiff, in making his final argument to the jury, sought to inflame the minds of the jury and to prejudice them against defendant by stating that defendant is a large insurance company having assets worth in excess of $15,000,000.00; that in the defense of this suit it is relying entirely upon a technicality and abuse of the plaintiff and reflections upon his character instead of defending the case on the merits and is following the practice of insurance companies generally of failing to pay just claims and of seeking to defraud policy holders of their rights of recovery and forcing them to compromise and settle claims on account of the expense and time required in litigation, and other remarks of a prejudicial and inflammatory character, appealing to the prejudice of the jury and not justified by the pleadings or the evidence in the case, to all of which affiant, as attorney for defendant repeatedly objected, during said argument; that said remarks were unjustified and constituted gross misconduct on the part of said attorney for plaintiff, and in view of the facts and circumstances disclosed, by the evidence, were sufficient, in the opinion of affiant, to cause the jury to render a verdict in favor of plaintiff and against defendant.'

The charges therein contained are not denied. Plaintiff's ownership of the scarf pin in question was vigorously contested by defendant, and the testimony thereon was sharply conflicting. The evidence of theft was purely circumstantial. In these circumstances, we must hold that defendant was not accorded the fair trial which our Constitution and laws guarantee. An insurance company is entitled to the same fair trial as an individual. Especially is this true when our experience has shown us that many jurors are fundamentally favorable to an individual plaintiff in a suit against an insurance company. In such cases, using counsel's cogent expression. 'it requires very little abuse and villification by the attorney for the plaintiff to so arouse the prejudice of the jury that they will render a verdict against the insurance company, regardless of the weight or sufficiency of the evidence.'

In Coe v. Van Way, 33 Colo. 315, 80 P. 894, 3 Ann.Cas 552, the fact that insurance companies generally protected defendants in personal injury suits was brought to the attention of the jury upon counsel's argument. Therein, on page 321 of 33 Colo. 80 P. 894, 896, Mr. Justice Campbell, states: 'Counsel knew when he made it that it was improper and reprehensible, and it is fair to presume that he would not have done so, had he not supposed that some advantage to his client would thereby be gained. In such cases counsel who thus seeks to obtain that result takes upon...