Clapp, Francis and Stanton. The opinion of the court was delivered by Francis, J.A.D.
In this case the plaintiff, Ann L. Haid, was knocked down by the automobile of the defendant. Claiming that she was crossing the street at an intersection crosswalk and that defendant's car, in making a left turn, caused the accident, she brought this action to recover damages for the injuries suffered. After trial, the jury brought in a verdict for the defendant, which the trial court declined to vacate on motion.
We are asked on this appeal to grant a new trial largely because of the conduct of defense counsel during the presentation of the case. Some of his questions and statements were objected to and the objections were sustained; others were not objected to. But it is contended that the tactics employed were so improper and so pervaded the proceedings to the probable detriment of plaintiffs, that the verdict should not be allowed to stand. Study of the record has convinced us that this is so and we have concluded to grant a new trial.
The principal impropriety complained of is defense counsel's insinuation to the jury in summation that his client was not insured. He said:
"* * * The only person here, I might add, who can possibly get anything out of this case is the plaintiff. The defendant can't get a dime. He loses whether you help him or not. He has already been put to the expense of bringing me in here, coming here himself --
Mr. Sanderson: I object to that.
The Court: There is no question about the expense of a case either by the plaintiff or the defendant.
Mr. Marley: Very well, then. I will refrain from going into that element." (Emphasis added)
We were told at the oral argument that defendant is insured by the Allstate Insurance Company. And counsel conceded that he had been retained for the defendant by, and either had been or expected to be paid by, the insurance company. So when he told the jury that already the defendant had been subjected to the personal expense of providing counsel, he knew the statement was untrue. Obviously the design is transparent -- to suggest to the triers of the fact that the defendant was not insured against an adverse verdict. And the hope and the expectation had to be that the misinformation would stimulate sympathy for the defendant and result in prejudice to the plaintiff. In fact, at the oral argument we asked:
"Weren't you trying to tell the jury that the defendant was not insured?"
For a long time our courts have recognized the impropriety and the potential prejudice in negligence cases when the plaintiff inadvertently or intentionally revealed the fact of the defendant's insurance protection. And the action of the trial court or the appellate tribunal thereon has depended in large measure upon the circumstances surrounding ...