*1 Mus- J., C. Bell, Before March Argued O’Brien Roberts, Eagen, Jones, Cohen, manno, JJ. ap- Orr Reed, him & Reed,
Robert L. with Orr, pellant. for appellee.
Eugene Morris, 1965: April bx Mr. Justice Cohen, Rule our Court after This taken appeal was did appellant However, became effective. 1/2 hence of Rule 68 1/2, with the requirements not comply quashed. must be appeal Appeal quashed. Appellant, v. Garris.
Nicholson, *2 C. J., Before 1964. Bell, September 29, Argued Rob- O’Bbien Cohen, Eagen, Jones, Musmanno, JJ. erts,
reargu- ment refused May
Robert B. Brugler, appellant. Norman L. him Levin, with B. Harry Thatcher, appellant.
"David McNitt him Barron, with Houck & Barron, for appellees. by Me. Justice 1965: March 16, Jones,
On March John T. Nicholson (Nicholson) was a in passenger a 1941 Ford station wagon owned operated and by Roy E. Swineford in (Swineford) direction westerly on Freedom Avenue, Burnham Bor- Mifflin ough, A County. collision in vi- occurred, of cinity the intersection of Freedom Avenue and Lo- gan Boulevard —an intersection controlled by electric' traffic signals the Swineford vehicle and a —between tractor-trailer operated by Wilson H. Garris (Garris) which was in travelling a northerly direction Logan on by Parr Frank J. owned The tractor was Boulevard. Company, Trucking (Parr), trading and Parr as Clay Com- by Products Kaul trailer owned (Kaul). pany Swineford collision, result of the As a injured. seriously instantly killed and Nicholson trespass actions three As a result of this accident, Miff- Court of Common Pleas instituted were rep- personal County: (1) by action lin an Swineford’s (2) against an Kaul; Parr and resentative Garris, by against Kaul Parr and action Nicholson Garris, joined estate additional wherein Swineford’s an (3) against defendant; an action Parr Swineford’s estate. The three actions were for trial consolidated questions after a nine which the negligence hotly contributory negligence were following contested, returned the verdicts: (1) personal repre- verdicts favor Swineford’s against sentative Garris, and Kaul in the amount (2) of $30,023.50; verdict favor Nicholson and against Parr and Garris, Kaul in the amount of $41,- (3) against 753.96; a verdict Parr and favor personal representative. Swineford’s Parr Garris, judgments Kaul moved for n.o.v. and a new supported fifty latter some reasons; the former were granted. denied and the latter From that order these appeals have been taken. granted
The court a new trial because of the revealing effect of jury, during *4 cross-examination “during of Parr of last hour last days required of the seven testimony”,1 for liability that Parr had expedite insurance. At to proceedings, all pre- evidence as to was by sented first, followed damages. evidence toas The appear last witness to was Parr who testified as to the damage equipment. sustained his One element opinion From of the court below. tractor a sending the cost was damage this alleged the scene to in Mt. Jewett home base from Parr’s tractor- a trailer and so as return the accident testified tractor. damaged to retrieve trailer operations $.40 in these involved expense that cross-examination, On per respectively. and mile $.50 oppos- produced income tax return Parr’s 1957 “Q. occurred: colloquy2 the following counsel and ing income your expenses exceeded your Isn’t true Q; Parr, Mr. A. It true. much so. Very 1957? show, call tax for 1957 income return you your part thereof, attention Schedule a your forming C, paid you and ask how much that return states you Q. much do ... A. And how your drivers. $2339.31. Q. oil? have down A. you gas $18,793.81. Q. Util- How much for license? A. ... $1130.47. Q. sup- ? ities A. (Emphasis Insurance?” $354.56. . plied)
At point ques- objected Parr’s counsel to the tion and moved the withdrawal of juror. motion to objec- withdraw a juror was but the refused, tion to the question was sustained as the below noted its invest- opinion, with this “[f]aced ment of time the trial of these cases and realizing the testimony was almost admon- concluded, ished the disregard the item in . question . .” It was the insertion of the factor of insurance into the trial at a late hour upon which the grant trial new was based. We now address ourselves under the instant whether, the dis- circumstances, closure to the Parr had so prejudicial to require a new trial.
It is hornbook law that the grant or refusal of a new lies within the discretion of the trial court to be and is bottomed on the facts and circumstances p. Record 670a.
151 disposition of particular A trial court’s case. of each manifest absent a not be disturbed motion will such a Cinciripini of law: or a clear error discretion abuse of Harmony 2d 860. A. Short 416 Pa. 205 Line, 231, v. appellants contend the court The instant granting a new trial abused its discretion. 2d Deeney 147 A.
In
v.
394 Pa.
Krauss,
380, 382,
general
of the
rule
this area
we reiterated the
369,
neg
long recognized
in this
law,
Commonwealth,
ligence
insured
“... the fact
defendant is
actions
that a
injection
so
is irrelevant and the
an issue
such
juror
prejudicial that it calls for
the withdrawal of
[citing
cases].”3
continuance
recently
principle
We
reaffirmed
in Trimble
(1964),
v. Merloe, 413
wherein
Pa.
In the instant
questioning
case,
effect
Parr,
trucking
owner
as to
firm,
the amount of
money spent on
“insurance” was to
before the
jury the fact insurance was involved. Counsel
3
Co.,
See also: Hollis v. U. S. Glass
49,
55;
220 Pa.
69 A.
Co.,
Lenahan v. Pittston
Coal
221 Pa.
620,
884;
70 A.
Curran v.
Lorch,
62; Kaplan
247,
Loev,
Pa.
v.
243
90 A.
327 Pa.
194 A.
Dively
Penn-Pittsburgh Corp.,
v.
653;
The reference to in mo- made the final insurance, ments of this highly prejudicial even on the face of the printed record. trial The in a judge was much better position than we are to evaluate in the atmosphere of the trial the effect of this reference insurance on jury; under circumstances, find no abuse of discretion on part judge a requiring new trial.
Orders affirmed. Dissenting by Mr. Justice O’Brien: I have no quarrel with the view of the majority that prejudice results from the injection of the fact of insurance into cases such as this. The general rule sound quite juries obviously, should not be per- mitted to consider the fact of a party’s insurance cov- 4 May 28, 1937, Act of P. §915, D. amended, 66 P.S. §1355. §13, See: A.L.R. 2d and cases therein cited. reaching tres- in a erage a verdict In thereof lack any pass other case. for that matter, case, or, developed have courts believe, however, might phobia char- be connection well which syndrome. acterized as the opinion majority: “The in the of the stated As preju- granted new trial because of the revealing jury, cross- dicial effect ‘during last examination of' Parr last hour required days testimony’, that of the seven perceive Parr had I fail insurance”. anywhere the record that the informed that Parr had insurance. testimony which order formed the basis opinion *7 majority the below, the opinion. Reading majority’s is set out in
here, the testimony simply being shows that while Parr was earnings cross-examined toas the or lack thereof of question his the business, was asked as to much how money spent particular year he had in a for insurance. question First it must all, be noted that this Secondly, not nothing answered. there is to indicate spoken the of insurance. very insurance referred to could well have been cargo theft insurance, fire insurance, life insurance, key hospitalization employees, insurance on insurance, any myriad of a other forms of insurance available purchased pri- countless business men and vate individuals. agree
Nor can I with majority’s the conclusion that “beyond the doubt” intentionally asked an effort to testimony before jury. This inference drawn majority wholly gratuitous support and has no in the record.
In Trimble v. Merloe, 413 Pa. A. 2d 457 (1964), majority cited opinion, closely di- vided court held that was sufficiently prejudicial to counsel state plaintiff’s a new trial require not whether the defendant jury should consider further had insurance. even go Today, “insur- and hold that the mere mention of the word ance” trial. ground is sufficient of a new grant I believe that grant
Since a new upon based what consider to be case, an innocuous, unanswered an extreme manifestation question, the insurance I dissent reverse syndrome, and would the order of the court below and reinstate jury’s verdicts.
Mr. Justice Musmanno and Mr. join Justice Cohen in this dissent.
Millili Company, v. Alan Wood Steel
Appellant.