Lorberbaum v. Christopher , 198 Minn. 289 ( 1936 )

I cannot agree with the majority. In my opinion, the trial court plainly erred in allowing defendant to examine plaintiff with respect to his second marriage and as to the details of the services of the second wife. It is well settled that in an action by the husband for wrongful death of his wife testimony as to second marriage and the services of the second wife is inadmissible and incompetent for any purpose whatsoever. St. Louis I. M. S. Ry. Co. v. Cleere, 76 Ark. 377, 88 S.W. 995; Chicago E. I. R. Co. v. Driscoll, 207 Ill. 9, 69 N.E. 620; Consolidated Stone Co. v. Morgan, 160 Ind. 241, 66 N.E. 696; Archer v. Bowling, 166 Ky. 139,179 S.W. 15; Davis v. Guarnieri, 45 Ohio St. 470,15 N.E. 350; Philpott v. Pennsylvania R. Co. 175 Pa. 570, 34 A. 856.

It is urged that the error was without prejudice for two reasons: First, that the testimony went only to the amount of damages and no verdict was returned for plaintiff; and, second, that the court instructed the jury that the subsequent marriage was not to be considered in mitigation of damages to be recovered by plaintiff.

The first is grounded upon the hypothesis that, as the jury found for defendant, it found that there was no basis for imposing liability, and therefore there never was any consideration of the question of damages. It is true that under a proper consideration of the issues in this case the fact of remarriage could have no bearing on the question of defendant's negligence or intestate's contributory negligence, upon which questions hinges defendant's liability. But it seems clear that as a practical matter the admission of such evidence had a likely tendency to prejudice the jury against plaintiff's cause of action to such an extent that it did not consider the elements of the case relating to defendant's liability fairly and impartially. Evidence such as was here produced showing that the husband remarried one year and three months after the death of his first wife, that the second was a good wife, that she was kind to all the children, and that she was a good housekeeper could have had but one effect on the jury, which was that the plaintiff had profited much and lost little by the death of his first wife. It could not have been otherwise than that this evidence influenced the jury's consideration of the issue of defendant's liability.

Granting that the jury properly considered the issue of defendant's liability without regard to this prejudicial testimony, and considered the fact of remarriage only in connection with the question of damages, if at all, my conclusion would not be altered. It may well be that the jury considered the defendant negligent, the plaintiff's intestate free from contributory negligence, and then decided to deny plaintiff damages because of his subsequent successful marriage. Would it not reasonably follow that the jury might have concluded that, as plaintiff later had acquired an excellent wife and his children a good and kind mother, no real loss had been suffered and therefore no damage would follow?

There is no sound basis for defendant's claim that the admission of the testimony regarding the subsequent marriage was without prejudice. It is true that in certain cases instruction by the court to disregard erroneous testimony will be sufficient to remove its harmful effect. The presumption is that it is sufficient. But where the erroneous testimony is of a character which would naturally affect the feelings or bias of the jury, it cannot be cured by that method. Evans v. C. M. St. P. Ry. Co. 133 Minn. 293, 158 N.W. 335. It seems to me that in this case the presumption is conclusively rebutted by the common-sense view of the character of the evidence. It would require considerable naiveté to believe that the effect of information which would likely appeal to deep-rooted feelings and ideas to the prejudice of a litigant can be completely or even partially erased by a few cautionary words spoken calmly and dispassionately by a trial court.

I have not overlooked the fact that there was no objection made by plaintiff's counsel when the information concerning the existence of the second marriage first appeared in the case. However, strenuous objection was made to the detailed examination relating to the merits of the second wife, which, considering the information obtained and the manner in which the examination was conducted, was highly prejudicial and cannot be said to have been licensed by the fact that it appeared originally that there was such a marriage. Also, the strenuous contest on the question of admissibility was carried on within the hearing of the jury, which obviously would have a tendency to emphasize the testimony.

The order appealed from should be reversed.