the plaintiff nevertheless could not recover because there would have been no subject matter in existence at the time the contract was made. The principle underlying that instruction to the jury was not attacked by the plaintiff. It is equally applicable to a claim of ratification by Lutz after the fire had destroyed what was to be the subject matter of the contract.
The statements by defendant's counsel of which the plaintiff complains dealt with two matters.
(1) In his opening to the jury defendant's counsel mentioned the amount of fire insurance which the plaintiff had in 1958, about a year and a half before the fire involved in the present suit. This was relevant to his claim, which I later rejected, that the four new policies, for which plaintiff surrendered the ten older policies, were 'replacement' rather than additional insurance. However, he began his statement regarding the amount of insurance the plaintiff had carried in 1958 by referring to a fire at that time: 'In 1958 he had a fire, and at that time he had -- '. (Transcript, p. 7). Plaintiff's counsel immediately interrupted with an objection, which was sustained. (Transcript, p. 8). Later, in the course of examining the plaintiff, whom he called as his witness, defendant's counsel asked whether plaintiff had had a fire in July of 1958. This was objected to as irrelevant, and on inquiry defendant's counsel responded: 'Simply to show what the insurance was at the time.' (Transcript, p. 127). Thereupon I commented and then admonished the jury as follows:
'THE COURT: Well, you can have that without having a fire. Most people have insurance without a fire. Otherwise there would be no insurance companies.
'Members of the jury, I will ask you to disregard the question, because I will sustain the objection to the question. Therefore, it is as if the question had not been asked, so far as you are concerned, because the question is not evidence. Only the answer is.' (Transcript, pp. 127-28).
There is no doubt that the prior fire was irrelevant and that mention of it was improper. It was twice brought to the jury's attention by defendant's counsel. But on both occasions the reference was immediately objected to and each time the objection was sustained. On neither occasion did the plaintiff request the Court to instruct the jury to ignore it. Nevertheless, after sustaining the objection to the question and indicating that the amount of insurance in existence at the earlier date could have been ascertained without reference to any prior fire, I went on to instruct the jury to disregard the question, pointing out that the question, which had not even been answered, was not evidence.
Thus the matter stood until the plaintiff was turned over to his own counsel for examination, whereupon plaintiff's counsel immediately asked him how long he had been in business. When this was objected to as beyond the scope of the direct examination, plaintiff's counsel went on to say that he wanted to show plaintiff's success in business in order to answer the allusions that had been made to a prior fire. (Transcript, pp. 150-51). Thus the fact of a prior fire was reopened by the plaintiff himself. Here again, after sustaining the objection, I said:
'And since I sustained the earlier objection by the plaintiff to the business of the fire, I don't think it is really relevant of material.
'MR. DILWORTH: Very well, sir.
'THE COURT: I will say to the jury, since we are now talking about a fire, which, so far as the jury is concerned, never occurred, it is most unfortunate that we are talking about it again, but you must disregard that.' (Transcript, p. 152).
At no time thereafter did the plaintiff complain or request any further instruction to the jury. If it was a matter that could have been cured by further instruction, such instruction should have been requested. If it was a matter that was beyond cure by additional instruction, the plaintiff should have requested the withdrawal of a juror. A mistrial, however, was not sought. This is of particular significance here because the matter objected to first occurred during the opening statement to the jury. A mistrial then would have been relatively harmless. Nor was a motion for mistrial made when on the next day the same matter was raised by the question put to plaintiff by defendant's counsel. Finally, it was the plaintiff himself who brought the question again to the attention of the jury by seeking to justify on this ground the effort to show how long the plaintiff had successfully been in business. At this point plaintiff's counsel appeared to rest content. Perhaps it was felt, since there was no evidence whatever on the subject, that the unanswered question by defendant's counsel had been matched by the unanswered question by plaintiff's counsel. At any rate, in this state of equality in the irrelevant both sides said no more.
(2) In the course of his opening to the jury defendant's counsel referred to a statement made to the Pennsylvania Insurance Commissioner by the plaintiff that the policies in suit were 'replacement' insurance and was about to refer to a later deposition, apparently at variance with the statement, when objection was made and sustained. I stated that any contradictions dealing with credibility were matters for trial and not for an opening statement. (Transcript, pp. 15-16). In the colloquy that followed defendant's counsel said: 'MR. WHITE: Your Honor, this is not a question of credibility. This is the defense in my case. He has perjured himself on the stand.' (Transcript, p. 16). Thereupon plaintiff moved that the statement be stricken as improper and charged defendant's counsel with knowing it to be improper. I instructed the jury to disregard completely the statements of both counsel. (Transcript, pp. 16-17). Here too there was no request by plaintiff for any additional caution to the jury, or for the withdrawal of a juror, or any later request for charge.
The defense of false swearing later foundered on the plaintiff's careful explanation from the witness stand (see Transcript, pp. 142-50), and defendant ultimately abandoned it.
The references to a prior fire and to perjury were improper, but I cautioned the jury to disregard them and reiterated on other occasions that statements of counsel were not evidence and should be disregarded. (See Transcript, pp. 19; 34; 120; 130-31; 384, Charge of the Court). Plaintiff did not request a mistrial but went forward in the submission of the case to the jury. Although he filed requests and supplemental requests for charge, he made no request for any additional cautionary instruction. in matters such as this each case is unique. I think this case is one in which the principle is rightly applicable that one who elects to take his chances on a verdict should not be permitted to complain. See McGuinn v. United States, 89 U.S.App.D.C. 197, 191 F.2d 477, 479 (D.C.Cir.1951).
It is, of course, true that prejudice may in some circumstances find such deep lodgement in the minds of the jury that it is impossible to eradicate it by any form of admonition. In such event a fair trial becomes impossible and the court on its own motion should require a new trial, notwithstanding the failure of the injured party to have demanded a mistrial. Undoubtedly counsel on both sides in this case made their contentions with much warmth and at times with heated indignation. I am satisfied, however, on a review of the evidence and from the atmosphere of the trial -- which cannot be captured in the typewritten transcript -- that the plaintiff received a fair decision by the jury based on the evidence, and that there is no substantial reason for a retrial.
And now, June 5, 1964, plaintiff's motion for new trial is denied.