Leach v. Metzger

Marbury, J., delivered the opinion of the Court. The plaintiffs-appellees, Estelle Metzger and her husband, William Metzger, brought suit on January 11, 1963, against the defendants-appellants, Artis Leach, driver of a taxicab, and Irvin Edelstein t/a Checker Cab Association Inc., for damages ⁵³⁵ arising out of injuries sustained by the wife as the result of a rear end collision on October 10, 1961, between the taxicab and a standing automobile in which Mrs. Metzger was a passenger. The appellants admitted their liability and on March 11, 1965, the case was tried before a jury, Judge Carter presiding, on the sole question of damages. After considering the evidence, the jury returned a verdict in favor of Estelle Metzger in the amount of $7,000 and a verdict in the amount of $2,000 in favor of William Metzger for medical expenses and loss of his wife’s services.

At issue on this appeal are the questions: (1) did the trial court commit error in refusing the appellants’ request for a mistrial because of the use by plaintiffs’ counsel of a “golden rule” 1 argument to the jury when the trial judge immediately instructed the jury to disregard that argument and re-instructed the jury as to the correct measure of damages, and (2) did the trial court err in its denial of appellants’ motion for a new trial based on the alleged excessiveness of the jury’s verdicts. At the trial the jury heard expert testimony from a doctor to the effect that Mrs. Metzger had, as a result of the accident, suffered an estimated 40% permanent disability due to injuries to her neck and that her injury would require therapy over a long period of time. Mrs. Metzger testified that as of the day of trial, she was still enduring pain in her neck which had affected her ability to sleep. She described that pain as a feeling that the flesh was being pulled from the bone.

William Metzger testified that after the accident his wife’s activities were limited, that she was in constant pain and as a result he was required to do household chores which would have otherwise been performed by his wife. Doctors’ bills paid by the husband totalled $430, and the wife’s wages lost consequent to the accident amounted to $232. After evidence as to the damages suffered had been presented, the trial judge properly instructed the jury as to the various elements to be considered in ascertaining what dollar figures would properly compensate the appellees. Plaintiffs’ counsel, Mr. ⁵³⁶ Klauber, then made his argument to the jury, which was not recorded.

During the course of that argument the following recorded colloquy took place between the trial judge and appellants’ counsel: “(Mr. Swerdloff) Counsel for the Plaintiffs has just stated to the jury that they must put themselves, basically, in the place of the Plaintiff and award damages as if it had been them involved in the accident. In fact, he said you must put yourselves in the place of these people, and I respectfully request— “(The Court) He said as though it was your wife. “(Mr. Swerdloff) I stand corrected. I submit that is an argument which is basically Golden Rule argument, is improper, outside of the scope of the evidence, and I respectfully request the Court for a mistrial. “(The Court) I deny that, but I shall