Dewey W. Smith v. Hattie Crawford ( 2003 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-CT-00257-SCT
DEWEY W. SMITH AND SYLVIA G. SMITH
v.
HATTIE CRAWFORD
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 09/22/2003
TRIAL JUDGE: HON. W. SWAN YERGER
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: THOMAS HENRY FREELAND, III
THOMAS A. COLEMAN
ATTORNEY FOR APPELLEE: TIMOTHY D. MOORE
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED, AND THE
JUDGMENT OF THE HINDS COUNTY
CIRCUIT COURT IS REINSTATED AND
AFFIRMED - 07/20/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1. This case on certiorari arises from a personal injury action filed by Dewey and Sylvia
Smith against Hattie Crawford.1 Dewey Smith and Hattie Crawford were involved in a motor
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The facts presented here come largely from those noted by the Mississippi Court of
Appeals. See Smith v. Crawford, 2005 Miss. App. LEXIS 601, at *1-3 (Miss. Ct. App. Sept.
6, 2005).
vehicle accident. Because Crawford admitted fault, there was no issue as to responsibility for
the accident. The only issue at trial was the amount of damages owed.
¶2. During trial, Crawford’s attorney stated during his closing argument that “while Mrs.
Crawford wanted the Smiths to be compensated for any damages that were caused by her
admitted negligence, she did not want to pay for or be responsible for any damage which her
negligence did not cause.” The Smiths’ attorney did not object to this statement when it was
made. Instead, the Smiths’ attorney responded in kind during his own closing argument by
saying: “I covenant with the jury that not a dime of any sum the jury might award the Smiths
would come from the pocket of Mrs. Crawford.”2
¶3. Crawford objected to the statement made by the Smiths’ counsel and asked for a
mistrial, which the circuit judge denied. Instead, the circuit judge instructed the jury to
disregard the statement made by the Smiths’ counsel. At the close of trial, the jury awarded
the Smiths $3,213 in damages. The Smiths appealed, arguing that the trial court’s instruction
to the jury to disregard the statement constituted reversible error and that their motion for a
new trial should have been granted.
¶4. The Court of Appeals, in a 5-3-1 decision, reversed and remanded for a new trial, stating
because Crawford’s statement was an impermissible reference to liability insurance, the
Smiths’ statement was a justified response, and thus the trial judge erred when he told the jury
2
The court reporter was not present for closing arguments, so there is no transcript of
exactly what each attorney said. However, both parties agree that those statements were
substantially similar to what appears here and in the Court of Appeals’ opinion.
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to disregard Smith’s statement. Smith, 2005 Miss. App. LEXIS 601 at *6-10. Aggrieved,
Crawford timely filed a petition for certiorari, which this Court granted.
STANDARD OF REVIEW
¶5. The issue on appeal is whether the Court of Appeals properly reversed the circuit
judge’s order denying the Smiths’ motion for a new trial. The standard of review for
considering a trial court’s decision denying a motion for a new trial is whether the trial court
abused it discretion. Pool ex rel. Poole v. Avara, 908 So. 2d 716, 726 (Miss. 2005); Janssen
Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 55 (Miss. 2004).
ANALYSIS
I. WHETHER THE COURT OF APPEALS ERRED WHEN IT CLASSIFIED A
STATEMENT MADE BY DEFENSE COUNSEL AS AN IMPERMISSIBLE
REFERENCE TO INSURANCE COVERAGE.
¶6. As the Court of Appeals correctly pointed out, there are numerous Mississippi cases
which stand for the proposition that references to liability insurance are generally
impermissible and constitute reversible error. See Jackson v. Daley, 739 So. 2d 1031, 1039
(Miss. 1999); Morris v. Huff, 238 Miss. 111, 117-20, 117 So. 2d 800, 802-03 (1960);
Snowden v. Skipper, 230 Miss. 684, 697, 93 So. 2d 834, 840 (1957); Avent v. Tucker, 188
Miss. 207, 225-26, 194 So. 596, 602 (1940); Herrin v. Daly, 80 Miss. 340, 341-42, 31 So.
790, 791 (1902).
¶7. However, this Court has made one exception to this general prohibition. Where a
defendant makes an impermissible statement intimating that he does not have insurance, the
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plaintiff is justified to inform the jury just the opposite. Snowden v. Webb, 217 Miss. 664,
674-76, 64 So. 2d 745, 750-51 (1953). In Snowden, the defense counsel told the jury that any
verdict returned would have to be paid out of his client’s wages. Id. at 674, 64 So. 2d at 750.
Plaintiff’s counsel then informed the jury that “not one cent of this would come out of Mr.
Snowden’s pocket or wages.” Id. at 674, 64 So. 2d at 749. The trial court sustained the
defense’s objection and instructed the jury to disregard the remark. Id. at 676, 64 So. 2d at
751. On appeal, this Court held that the response by plaintiff’s counsel was justified and did
not constitute reversible error, especially since the circuit judge instructed the jury to
disregard the statement. Id.
¶8. Contrary to the Court of Appeals’ finding, we find the statement by Crawford’s attorney
did not rise to the level of language used by the defendant’s attorney in Snowden. The
statement made by Crawford’s attorney did not intimate that Crawford lacked insurance, but
instead simply suggested that “Crawford, like any defendant, did not want to be held
responsible for damages which she did not cause.” Smith, 2005 WL 2140858, at *4 (Lee, P.J.,
dissenting). But see Morris, 238 Miss. at 119-120, 117 So. 2d at 802-03 (question by
plaintiff’s counsel as to whether the owner of an automobile would have to pay a judgment, as
well as a statement by plaintiff’s counsel that “the [owners] will not have to pay one penny even
though they own the truck” was improper and constituted reversible error.) Furthermore, the
Court of Appeals’ holding has an unintended effect of preventing a defendant from arguing that
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she should not be held responsible for pre-existing damage or damage she did not cause.
Smith, 2005 WL 2140858, at *4 (Lee, P.J., dissenting).
¶9. The decision in Snowden was based on the finding that the defendant’s statement was
an impermissible reference to liability insurance. Snowden, 217 Miss. 664 at 676, 64 So. 2d
at 750. Here, we find Crawford’s attorney did not reference liability insurance. Thus, the
comment by Crawford’s defense counsel did not open the door to discussing the issue of
insurance. As such, the remark by the Smiths’ counsel was improper, contrary to the Smiths’
assertion based on Snowden. Because the facts in the case at bar are distinguishable, the
holding in Snowden is not applicable to this case.
¶10. The next question becomes whether the response by the Smiths’ attorney, “I covenant
with the jury that not a dime of any sum the jury might award the Smiths would come from the
pocket of Mrs. Crawford,” constituted reversible error. Normally, a party’s reference to or
intimation that the other party carries or is without liability insurance is improper and
constitutes reversible error. However, because we find the comment made by Crawford’s
attorney was not a reference to insurance, the Smiths’ argument, that the trial judge erred when
he instructed the jury to disregard the Smiths’ statement of their counsel, is without merit.
Moreover, if this Court were to find that the remark by the Smiths’ attorney constitutes
reversible error, this Court would effectively allow the Smiths to benefit from their own
mistake, as the Smiths originally appealed the circuit judge’s ruling.
CONCLUSION
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¶11. This Court finds that the Snowden case is not applicable to the case at bar. Unlike
Snowden, the comment made by defense counsel in the case at bar did not constitute a
reference or insinuation that the defendant either carried or lacked insurance. Therefore, the
remark made by plaintiffs’ counsel was improper. Finding no abuse of discretion on the part
of the circuit judge, we reverse the judgment of the Court of Appeals and reinstate and affirm
the trial court’s judgment.
¶12. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE
JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REINSTATED AND
AFFIRMED.
WALLER AND COBB, P.JJ., EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY GRAVES, J.
DIAZ, JUSTICE, DISSENTING:
¶13. Because I agree with the Court of Appeals that defense counsel’s statement constituted
an impermissible reference to liability insurance, I respectfully dissent. As noted by this
Court, when a defendant implies that she lacks liability insurance, the plaintiff is entitled to
correct the statement. Snowden v. Webb, 217 Miss. 664, 675-76, 64 So. 2d 745, 750-51
(1953). In this case, the statement by Crawford’s counsel clearly indicated that she was
without insurance. Any reasonable juror would have interpreted the words “pay for or be
responsible for” to mean that Crawford would be personally liable for any damages. As such,
the plaintiff should have been permitted to “remove the sting and effect of such an argument.”
Id. at 676, 64 So. 2d at 751. The trial court committed reversible error by instructing the jury
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to disregard the reply of counsel for the plaintiffs. For these reasons, I would uphold the
decision of the Court of Appeals to reverse and remand.
GRAVES, J., JOINS THIS OPINION.
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