Sutzer v. Allen, 142.

• Decision Date: 22 July 1926
• Docket Number: No. 142.,142.
• Citation: 236 Mich. 1,209 N.W. 918
• Parties: SUTZER v. ALLEN et al.
• Court: Michigan Supreme Court

236 Mich. 1

209 N.W. 918

SUTZER

v.ALLEN et al.

No. 142.

Supreme Court of Michigan.

July 22, 1926.

Error to Circuit Court, Washtenaw County; George W. Sample, Judge.

Action by Cora Sutzer against Albert T. Allen and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Argued before the Entire Court.

Walter Schweikart, of Detroit, for appellants.

Frank B. De Vine, of Ann Arbor, for appellee.

BIRD, C. J.

Plaintiff sued defendants to recover her damages for personal injuries resulting from an automobile collision in the city of Ann Arbor. Plaintiff was riding in a taxicab. Defendants were riding in their automobile. They collided with the taxicab by reason of getting on the wrong side of the street. Plaintiff received, at the hands of the jury, $2,000. She remitted $500 because, as the record states, she sued for only $1,500. Defendants raise the following questions: (1) Did the comment of plaintiff's counsel in his argument to the jury, concerning the fact that defendant was insured, constitute prejudicial error? (2) Did the court err in not directing a verdict for the defendants at the close of the plaintiff's case because there was no identification of the parties nor proof of ownership of the automobile? (3) Was the verdict of the jury excessive?

1. Defendants state their objection on this question in the following manner:

‘During the opening argument to the jury, Mr. De Vine, counsel for the plaintiff, suddenly bursted into an uproar of oratorical dramatism, exclaiming in a most passionate and vindictive tone of voice: ‘You don't hear him denying saying I am insured in the insurance company and the company will settle for it.’

Plaintiff justifies his comment on the ground that what he said was a part of the evidence. Russell E. Jordan, the taxicab driver, and a witness for plaintiff, testified, in part, as follows:

‘Q. What, if any, conversation did you have with Mr. Allen immediately upon the happening of the accident? A. Not any right then, because I got the lady to the hospital as soon as I could get the car to going. I saw him about half an hour after.

‘Q. What did he say then? A. He said he knew he was at fault and the insurance company would take care of it.’

The trial court instructed the jury as to this incident as follows:

‘Before I forget it, gentlemen of the jury, something has been said on the matter of what was claimed to have been said by the defendant, that he was insured. That matter has crept into this case, and, as the court thinks, properly. It was alleged to have been said at the time by the defendant, but as to whether or not the defendant was insured in this case should have nothing to do with your verdict. Your verdict should be based upon grounds absolutely free and clear from whether there was any insurance carried or not covering this defendant.’

In view of the objectionable language being a part of the testimony, and the statement by the court as to the use which should be made of it by the jury, we think no prejudice resulted to defendants. It has now become common knowledge that people owning automobiles have them insured, and, because that fact in a particular case reaches the ears of the jury during the trial, it is no longer reversible error unless and improper use is made of it by counsel for the evident purpose of inflaming the passions of the jury and thereby increasing the size of the verdict. Ward v. De Young, 210 Mich. 67, 177 N. W. 213.

2. Were the parties properly indentified and proof made of the ownership of the automobile? We think the record fairly discloses that the automobile in which defendants were riding belonged to the father, and that the son...