Appeal, No. 52, Jan. T., 1964, from order of Court of Common Pleas of Lycoming County, Feb. T., 1961, No. 134, in case of William Trimble v. Ann V. Merloe. Order affirmed.
Patrick H. Fierro, for appellant.
H. Alvan Baird, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
Plaintiff-appellant, in an action of trespass for personal injuries, was awarded $47,000 by a jury in the Court of Common Pleas of Lycoming County. Defendant-appellee filed a motion for a new trial which was granted by the court en banc. It is from the order granting a new trial that this appeal was taken.
The sole issue before us is whether a discussion of insurance in the closing argument by the attorney for plaintiff was so prejudicial to defendant as to warrant the granting of a new trial. The remarks of counsel for plaintiff, to which exceptions were taken, are noted on the record as follows:
"Counsel for the Plaintiff told the jury that there were two items that the Jury often questioned Counsel about, not excluding or including Plaintiff's Counsel in this case. Number one, that we were not allowed to tell Jurors the sum of money that the Plaintiff wanted, because the law wisely believes that to do so may prejudice the Jury and that is one of the reasons we may not speak about it.
"Secondly, I told the Jury that Jurors often asked Trial Counsel why insurance is not mentioned, or if available, why the amount of the insurance is not given to the Jury, and Trial Counsel stated that it was unimportant whether a Defendant was insured or not, rich or poor, that the law expected the Jury to arrive at a verdict not based upon any factor which might prejudice them or allow them to give a verdict not in accordance with the evidence, but in no case did I mention whether or not this particular Defendant had insurance."
In this and every adversary tort proceeding, two basic issues are presented: (1) liability and (2) the damages to be awarded as compensation for the wrongful invasion of plaintiff's rights. In resolving these issues (in the absence of punitive damages), consideration of the affluence of the defendant, his ability to pay, or his liability insurance coverage is improper, irrelevant, prejudicial, and clearly beyond the legally established boundaries.
The rule concerning the mentioning of insurance during a trial was best stated in Lenahan v. Pittston Coal Mining Co., 221 Pa. 626, 629, 70 Atl. 884, 885 (1908), and was repeated in Kaplan v. Loev, 327 Pa. 465, 468-69, 194 Atl. 653, 655 (1937), from which we quote: "'The fact that the defendant in an action for personal injuries is insured ... has not the slightest bearing on the issue. ...