Rent-A-Car Co. v. Globe & Rutgers Fire Ins. Co.

• Decision Date: 11 January 1933
• Docket Number: 52.
• Citation: Rent-A-Car Co. v. Globe & Rutgers Fire Ins. Co., 163 Md. 401, 163 A. 702 (Md. 1933)
• Parties: RENT-A-CAR CO. v. GLOBE & RUTGERS FIRE INS. CO.
• Court: Maryland Court of Appeals

163 A. 702

163 Md. 401

RENT-A-CAR CO. v. GLOBE & RUTGERS FIRE INS. CO.

No. 52.

Court of Appeals of Maryland

January 11, 1933

Appeal from Baltimore City Court; George A. Solter, Judge.

Action by the Rent-A-Car Company against the Globe & Rutgers Fire Insurance Company. From a judgment in favor of the defendant the plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, and PARKE, JJ.

Richard E. Preece and Leon H. A. Pierson, both of Baltimore, for appellant.

Howard A. Sweeten and Zanvyl Krieger, both of Baltimore (Weinberg & Sweeten, of Baltimore, on the brief), for appellee.

DIGGES J.

This is the third time this court has been called upon to consider the contentions between the parties to this appeal. The case has been three times submitted to a jury, resulting each time in a verdict for the defendant below, appellee here. In the first appeal, Rent-A-Car Co. v. Globe & Rutgers Fire Ins Co., 158 Md. 169, 148 A. 252, the case was reversed because of the granting by the trial court of prayers which held that, where a policy of fire insurance named the mortgagor and mortgagee as the assured and made the loss payable to the assured, as interest might appear, and where the evidence showed that the mortgagor had set fire to and destroyed the property, such fact constituted a defense against the mortgagee also, even though the mortgagee was entirely innocent of any participation in, or knowledge of the incendiary act of the mortgagor. In the second appeal (161 Md. 249, 156 A. 847), the judgment was also reversed for the granting of erroneous prayers. In the last mentioned case it was held that the defendant's demurrer prayers were properly overruled; this court thereby deciding that there was sufficient evidence of the appellant's participation in or connection with a conspiracy to set fire to and destroy the insured property. On this appeal the appellant urges reversible error on three principal grounds: First, because of improper remarks of appellee's counsel in his opening statement to the jury; second, because of a conversation had between a juror and one of the witnesses for the defendant; and, third, because of error of the trial court in its ruling on the prayers.

The facts in this case have been stated by this court at length in the two previous appeals, and it is therefore unnecessary to again detail them. Suffice it to say that the evidence as shown by the present record is substantially the same as in the preceding appeals. There is the testimony of several witnesses in the present record who gave evidence for the first time, but their testimony deals with the movements of George Winters on the night of January 2-3, 1928, the time of the fire, tending to show that he was not in the neighborhood of the property wherein the fire took place at any time during that night; such evidence not affecting the legal propositions now before us for determination. We will consider the contentions of the appellant in the order in which we have stated them.

The record discloses the following:

"During the opening statement of the defendant, the plaintiff excepted to a remark made by Mr. Weinberg to the effect that the plaintiff had Kezer arrested.

The Court: I think I know what you are going to say and unless you press it we will meet it when the testimony comes in.

Mr. Weinberg: I do not think it is terribly material although I think it has been ruled on by the Court of Appeals. We will offer it at the proper time.

The Court: I do not think it has the importance that counsel seem to attach to it.

Mr. Weinberg: Well, at any rate, something happened to Kezer.

Mr. Pierson: At this point we object to that remark.

(Objection overruled; exception noted.)"

In the previous trial the witness Kezer had testified that Charles Winters, the president and owner of all the stock of the appellant, and his brother George Winters, had, at a time shortly prior to the sale of the property to Astrin, suggested to the witness that, if they had a fire resulting in the destruction of the personal property, to wit, the automobiles used at 1239 and 1241 Light street, the insurance company would have to worry about the condition of the automobiles; the witness having stated to the Winters that business had fallen by reason of the dilapidated condition and want of repair of the automobiles. Witness further stated that, after he had left the employ of Winters, he went to work for O'Brien Bros., a general garage and repair shop next door to the Light street branch of the Rent-A-Car Company; that he met Charles Winters in the alley dividing the two properties; that Winters said: "What are you doing here? You better stay away-from this neighborhood; you will hurt my business"; that subsequently he was arrested on a charge of embezzlement of $2.50 from the appellant; that the witnesses at the preliminary hearing and at the trial of the case, which resulted in acquittal, were Charles W. Winters, George Winters, and Myer Astrin. This witness further testified that, at the time at which the Winters had the conversation with him in reference to the insurance on the cars, Charles Winters desired him and George Winters to operate the Light street branch on shares, and he (the witness) said: "Mr. Winters, I haven't any money to go into this business"; Winters said: "I know you haven't; you don't need any money; I will turn the place over to you and George to work together--you only have twelve cars down here, I will send more from the main office, give you a good bunch of cars, we will have a fire down here and let the insurance company worry about the automobiles"; "I got frightened and I told both of them I didn't care to enter into such a proposition, and Mr. George Winters said, 'Don't be a damned fool, Jud, this is a chance for all of us to make money.' I said I was disinterested and afraid. Mr. Charles Winters said, 'Other people get away with it, why can't we?' "

The opening statement of the defendant's counsel had for its legitimate purpose an outlining of the defendant's case, stating to the jury what it expected to prove. We think this statement was entirely legitimate and proper under the circumstances. If later evidence was offered to prove the opening statement of counsel for the defendant, its admissibility could then be passed upon. If such evidence was held admissible, there could be no possible legal objection to the opening statement of defendant's counsel. If plaintiff believed such evidence was inadmissible, he could fully protect his rights by objecting to its admission, and by proper exception have the admissibility vel non passed upon on appeal. As a matter of fact, the witness Kezer's testimony on this point was offered and submitted to the jury without objection. Neither was this testimony denied or in any manner contradicted. Under such circumstances, it became legal evidence in the case, and the statement by counsel at the opening of the case that Winters had brought about Kezer's arrest was confirmed by testimony unobjected to and unimpeached. In Hyatt on Trials, § 1453, the rule is thus stated: "If the statement is made in good faith, relying upon the production of proof, while improper in any case, it is not reversible error. The abuse of privilege must be a plain case and the statement must be plainly made in bad faith or made in a gross misconception of what is admissible resulting in bringing to the attention of the jury wholly irrelevant matters and of a nature calculated to create so profound a prejudice that it can not be eliminated by the charge of the Court to justify a reversal." In this case the evidence subsequently offered was relevant, and was admitted without objection.

The second contention of the appellant arises out of these facts: During the progress of the trial and near its beginning, counsel for the appellant brought to the attention of the court alleged misconduct of a juror; this misconduct being a conversation between the juror and a witness for the appellee occurring in the corridor outside of the courtroom. Upon being thus advised, the court suspended the trial and retired to his chambers, where, in the presence of counsel for the parties, the juror in question and other witnesses, after being sworn, were examined by the court and counsel as to the conversation and circumstances surrounding the alleged misconduct. This examination was insisted upon by the appellant and acquiesced in by the appellee. The witness Warr, with whom the juror had the conversation, was chief of the salvage corps and was an acquaintance of the juror. According to Charles W. Winters, the president of the appellant, the conversation was with regard to the former trials of this case. His account of the conversation was as follows:

"Q. What did you hear? A. This gentleman came in the door (indicating the juror) from St. Paul Street, and Chief Warr and I don't know whether another fireman or police was standing with their back towards him, and he walked up to Chief Warr and kind of run into his shoulder and said, pardon me, Chief, good morning, and he shook hands, and shook hands with the other gentlemen with the Chief, and this gentleman said, did you have a hard day in Washington yesterday, or did you have a good trip, I understood him to say, and Chief Warr said, yes, it was hard work, I have to go

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