Wilson v. Wesler, Admx.

OPINION OF COURT. The following is taken, verbatim, from the opinion. CUSHING, J. The record discloses that counsel for plaintiff, in the trial court, in cross-examining the defendant, asked the following questions: “Q. Which way was your machine, straight or catacornered, when you passed that car? “A. I don’t remember just how it was. I just come around the corner. “Q; You don’t remember whether it was straight or catacornered ? “A. No; I don’t remember. “Q. Didn’t you report to your insurance company that you went straight catacornered across that corner ? “A. No, sir. I did not.” The trial court, at that time, instructed the jury that the question was improper, and that the jury should disregard it. The question was improper, as there was no issue to which the testimony was relevant. The purpose of the question was to suggest to the jury that the defendant is protected against loss by an indemnitor, not a party to the cause of action. The rule is that testimony must relate to the issues made by the pleadings. There was no issue to which this testimony could, in the remotest degree, be relevant. The rule is stated thus; that the defendant, in an action for negligence, was insured in a casualty company, or that the defense was conducted by an insurance company, is incompetent and so dangerous as to require a reversal, even when the court strikes it from the record and directs the jury to disregard it, unless it clearly appears that it could not have influenced the verdict. Simpson v. Foundation Co., 201 N. Y. 479. To the same effect are the following: Schmidt v. Schlam, 20 C. C. (n.s.) 99; Cement Co. v. Hatt, 231 Fed. 611; Curran v. Lorch, 243 Pa. 247; International Co. v. Clark, 147 Md. 34. In Duke v. Parker, 125 S. Car. 442, the court used this language: “Such evidence or argument has a manifest and strong tendency to carry the jury away from the real issue and to lead them to regard carelessly the legal right ofi the defendant, on the ground that some one else will have to pay the verdict.” We repeat and emphasize the rule that all evidence must tend to establish some issue, made by the pleadings, and that the injection of facts, not relevant and material to the issue, are errors, for which the judgment will be reversed. ■ (Hamilton, PJ., concurs. Bdphwalter, J., not participating.)