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DEENEY v. KRAUSS (01/05/59)

January 5, 1959

DEENEY
v.
KRAUSS, APPELLANT.



Appeals, Nos. 317 and 318, Jan. T., 1958, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1955, No. 9967, in case of Elizabeth Deeney et al. v. Raymond Krauss. Judgment affirmed.

COUNSEL

Joseph D. Shein, with him Max E. Cohen, and Henry Temin, for appellant.

Thomas J. McCormack, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Jones

[ 394 Pa. Page 381]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

These appeals attack the propriety of the action of the court below in a trespass action in refusing a motion for a new trial and in entering judgment upon verdicts in favor of appellees.*fn1

Mrs. Deeney was injured when struck by a motor vehicle operated by the appellant at the intersection of Henry and Midvale Avenues, Philadelphia. Mrs. Deeney had been a passenger in a trolley car which had been proceeding in an easterly direction on Midvale Avenue. At the intersection of Henry and Midvale Avenues the trolley car stopped, Mrs. Deeney alighted from the trolley car, passed in front thereof and, while attempting to cross Midvale Avenue, was hit by appellant's motor vehicle proceeding west on Midvale Avenue.*fn2

[ 394 Pa. Page 382]

Appellant urges that a new trial should be granted on either one of two grounds: (1) that the jury was improperly influenced by references made to insurance during the trial and (2) that the testimony of a police officer concerning a skid mark found by him at the site of the accident one and one-half hours subsequent thereto should not have been admitted into evidence.

The references to insurance were made during cross-examination of the appellant by appellees' counsel. In reply to a question as to whether appellant had given a statement to anyone, beside the police, as to his version of the accident, appellant replied: "The insurance representative". On further cross-examination appellant was asked whether he had had any conversation with one Martin Keogh, a passenger in appellant's automobile at the time appellant drove Mrs. Deeney to the hospital after the accident. The appellant replied: "Well, we were trying to console our patient. She was saying different things that didn't make too much sense. We were trying to tell her we were taking her to the hospital and we had insurance." On both occasions when insurance was mentioned the trial court very properly and promptly admonished the jury to ignore such references.

As a general rule in a trespass action the fact that a defendant is insured is irrelevant and the injection of such an issue is so prejudicial that it calls for the withdrawal of a juror and continuance of the trial: Harriett v. Ballas, 383 Pa. 124, 117 A.2d 693; Kaplan v. Loev, 327 Pa. 465, 194 A. 653; Lenahan v. Pittston Coal Company, 221 Pa. 626, 70 A. 884. In the Lenahan case, supra (p. 629), we said: "It is an irrelevant fact prejudicial to the defendant and its ...


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