Rinehart & Dennis Co. Inc v. Brown

• Citation: 120 S.E. 269
• Court: Supreme Court of Virginia
• Decision Date: 15 November 1923
• Parties: RINEHART & DENNIS CO., Inc. v. BROWN.

120 S.E. 269

RINEHART & DENNIS CO., Inc.

v.BROWN.

Supreme Court of Appeals of Virginia.

Nov. 15, 1923.

Rehearing Denied Nov. 30, 1923.

Error to Corporation Court of Charlottesville.

Action by J. J. Brown against the Rinehart & Dennis Company, Inc. Judgment for plaintiff, and defendant brings error. Reversed.

S. L. Sinnott, of Richmond, and Duke & Duke & Gentry, of Charlottesville, for plaintiff in error.

Perkins, Walker & Battle, and Allen & Walsh, all of Charlottesville, for defendant in error.

BURKS, J. Rinehart & Dennis Company, Inc., had contracted to build numerous houses at Camp Lee, near Petersburg, and had employed a number of men, including the defendant in error, Brown, to do the work. This action was brought by Brown, the defendant in error, hereinafter called the plaintiff, against Rinehart & Dennis Company, Inc., hereinafter called the defendant, to recover damages for a personal injury alleged to have been sustained in consequence of the negligence of the defendant.

Counsel for the plaintiff in his opening statement to the jury said:

"That the Rinehart & Dennis Company was nominal defendant, and further stated that the real defendant was the Maryland Casualty Company, or words to that effect, to which statement counsel for the defendant, the Rinehart & Dennis Company, objected, and the court promptly sustained the objection; and the said Walker (counsel for the plaintiff) said during colloquy between counsel and court that the counsel for the Maryland Casualty Company was then in court representing the defendant. To both of which statements defendant by counsel objected, and asked that the jury be discharged from the consideration of the case on account of these statements. The Court, however, refused to so discharge the jury, but verbally and positively instructed them that the only defendant in this case was the Rinehart & Dennis Company, and that the question as to whether they were insured or not had nothing to do with the case, and that they were not to consider any statement of counsel that they were so insured, in any manner whatsoever. And the court further asked the jury if they fully understood that, and they indicated they did. To which action of the court in failing to discharge the said jury the counsel for defendant excepted."

Afterwards, when Percy H. Paulconer, a witness for the defendant, was on the stand, counsel for the plaintiff, on cross-examination, asked him:

" 'Mr. Paulconer, your company carried casualty insurance, did it not?' To the making of this statement by counsel for plaintiff the defendant objected, and the court sustained the objection and directed the jury in an emphatic manner not to consider this question at all, and warned counsel against making a similar statement. The defendant then asked that the jury retire, which they did, and counsel then moved the court to discharge the jury, because the plaintiff's counsel by his question had let the jury understand that the defendant, who was a local company, would not have to pay a verdict, if one was had; but the court declined to discharge the jury. The jury was then brought back, and the court again emphatically instructed the jury that they must not consider the question that had been asked, and they should consider only the Rinehart & Dennis Company as party to this suit. And the jury again indicated plainly to the court that it would not be influenced by the improper statements of counsel, and the court held it was not prejudicial under all the circumstances. To which action of the court in failing to so discharge the jury the counsel for defendant excepted."

Again, after the evidence was closed, during the argument of the case before the jury—

"the said counsel, in his argument apparently started to reiterate before the jury something about Mr. Sinnott representing somebody. Counsel for the defendant at once interrupted the said Walker, and protested and objected against any further statement, and Mr. Walker stopped. The court again verbally instructed the jury that they must disregard the intimation of the said Walker, and pay no attention whatever to it. To which action of the said Walker, defendant excepted."

It is assigned as error that the trial court overruled the defendant's motion to discharge the jury on account of the misconduct of counsel. It is too manifest to need argument, and indeed is conceded everywhere that the fact that a defendant is insured against accident can throw no light on whether or not he has been negligent in a given case. Consequently, evidence of such insurance is irrelevant and inadmissible in an action against a defendant for a negligent injury. Va.-Car. Chem. Co. v. Knight, 106 Va. 674, 56 S. E. 725. What is the effect, however, of getting such evidence before the jury, over the objection of the defendant? Counsel for the defendant in error admit that the subject of the casualty insurance was not a proper subject of consideration by the jury, but insist that the verdict of the jury cannot be set aside on account of tie reference to the insurance, unless there is a manifest probability that these statements have been prejudicial to the adverse party, and that whether prejudice has occurred can be ascertained only by determining whether the verdict in its amount discloses prejudice and disregard of the evidence.

It is said in Wash. & O. D. Co. v. Ward, 119 Va. 334, 339, 89 S. E. 140, 142, that—

"a judgment ought not to be reversed for the admission of evidence or for a statement of counsel which the court afterwards directs the jury to disregard, unless there is a manifest probability that the evidence or statement has been prejudicial to the adverse party."

But the opinion also states that—

"there are cases in which the error of admitting improper testimony, or the effects of mere statements of counsel, cannot be adequately overcome by a subsequent direction to the jury to disregard the objectionable evidence or statements."

The opinion refers to 29 Cyc. 775-783, and cases cited, for a general discussion on the subject. It is there said, amongst other things:

"Improper questions and remarks of counsel in the examination of witnesses may require the granting of a new trial, but only where they have probably misled or prejudiced the jury. * * * Generally a new trial will be denied where improper argument has been checked by the court and the jury has been instructed to disregard the improper statements. If, however, counsel persists in such argument after the admonition of the court, or if it appears that the unfavorable influence of the argument was probably not wholly removed by the court's action, a new trial may be allowed. A new trial may be granted, although the improper statements have been qualified or withdrawn by counsel."

We think this is a correct statement of the law.

In P. Lorillard v. Clay, 127 Va. 734, 752, 104 S. E. 384, 390, it is said:

"It will be observed that no objection was made or exception taken to the last three statements of counsel until after the verdict, and then only retrospectively as indicating that the verdict was the result of prejudice induced by the improper argument of counsel."

Again:

"Counsel for the defendant insist the wrong done was not righted, nor the poison given eradicated, by the action of the court, as is manifested by the excessive amount of the verdict, and we are asked to take a retrospective view of all of the remarks of counsel, both those that were and those that were not excepted to, so as to see the atmosphere created by them surrounding the jury at the time they rendered their verdict."

It was in response to these requests that this court said:

"We must consider then whether the amount of the verdict was such as to indicate that the jury were probably improperly influenced by the remarks of counsel."

It was not said that the existence of prejudice on the part of the jury could be ascertained only by determining whether the verdict in its amount disclosed prejudice or disregard of the evidence. In that particular case it did, and that was all that it was necessary to investigate, but that was not announced as a universal test. There may be cases in which the evidence may not warrant any recovery by the plaintiff, or the evidence leaves it doubtful if the plaintiff is entitled to recover, where a verdict for the plaintiff for any amount may be said to have been induced, or certainly influenced by the improper remarks of counsel. In such cases the verdict should be set aside.

A number of cases have come before this court in recent years involving the misconduct of counsel in the examination of witnesses or their arguments before the jury, some of which are reviewed in the cases hereinbefore cited. Wash. & O. D. Co. v. Ward, supra; Norfolk & W. R. Co. v. Allen & Sons, 122 Va. 603, 95 S. E. 406; McCoy v. Commonwealth. 125 Va. 771, 99 S. E. 644; Sands & Co. v. Norvell, 126 Va. 384, 101 S. E. 569: Lorillard Co. v. Clay, 127 Va. 734, 104 S. E. 384; Seay & Day v. Commonwealth, 135 Va. 737, 115 S. E. 574; Atlantic Coast Realty Co. v. Robertson, 135 Va. 247, 116 S. E. 476. A detailed review of these cases would unnecessarily protract this opinion without special profit. They furnish no support for persistence in wrongdoing. In inadvertent cases, and cases where no serious harm seems to have been probably done, we have given controlling effect to the judgment of the trial court. In several we have felt compelled to reverse.

In the case in judgment, it will appear further on that we are of opinion that the evidence was not sufficient to warrant any verdict in favor of the plaintiff. But, even in a case where the right of the plaintiff to recover is doubtful, the trial court should be alert to prevent any adventitious advantage that may turn the scales. The determination of the issue should not be prejudiced by improper evidence, or by any improper procedure which may affect the result. The plaintiff here has been allowed to...