
    Ferstman v. The Fidelity & Casualty Co.
    (Decided April 27, 1931.)
    
      Mr. James T. Cassidy, for plaintiff in error.
    
      Messrs. Howell, Roberts & Duncan, for defendant in error.
   Lemert, J.

This was an action by Julius Ferstman, the assignee, upon a policy of robbery insurance which had been issued by defendant to Ferstman’s daughter, Betty Meltzer, the claim being for the full face value of the policy of $1,500, it being asserted that Betty Meltzer had been robbed of her jewelry which had been of the value of $1,500. The first trial resulted in a verdict for plaintiff in the sum of $500. The second trial resulted in a verdict for defendant, the defendant’s claim being that the claimed robbery was purely a fake and that no real robbery had actually taken place.

The errors complained of in the petition in error herein are as follows

First, that the verdict of the jury is manifestly against the weight of the evidence; second, that the court erred in sustaining objections to the questions asked Samuel Meltzer on cross-examination by counsel for plaintiff; third, that the court erred in permitting Samuel Meltzer to testify to a conversation had with Mr. Roberts, counsel for defendant, which occurred about ten or fifteen days prior to the trial, at which conversation neither plaintiff nor Betty Meltzer were present; fourth, that the court erred in overruling the objection of plaintiff to the statements made by counsel for defendant in argument; fifth, that the court erred in its charge to the jury.

We have carefully examined the record in this ease, and have noted the assignments of error claimed therein, and with reference to the assignments 1, 2 and 5 we find that there is no’prejudicial error therein and no merit to the claim made by plaintiff in error.

With reference to the third claim of error, to wit, that the court erred in permitting Samuel Meltzer to 'testify to a conversation had with Mr. Roberts, counsel for defendant, about 15 days prior to the trial, at which conversation neither plaintiff nor Betty Meltzer was present, we quote from the record in the case, as follows:

“Q. When I talked with you about a week ago or ten days ago — I can’t tell just when — but recently, isn’t it the fact that that was the first time that I asked you if you had any knowledge on the subject of what became of those rings?
“Mr. Cassidy: I object to that.
“The Court: He may answer.
“Mr. Cassidy: Note an exception.
“A. Yes, sir, that is the first time.
“Q. Up until I asked you that question recently, when I was talking to you about this case coming up for trial again, — up until I asked you that question, isn’t it a fact that you never volunteered to tell me that you had seen one of these rings, in the fall following the alleged robbery?
“Mr. Cassidy: I object, Your Honor, that is all cross-examination of his own witness.
“The Court: Oh it isn’t, it is directly in explanation. Otherwise the argument would be all one-sided Mr. Cassidy. He has a right to explain the witness’ answer as to why certain things were not done.
“Mr. Cassidy: Note an exception.
“A. Never.
“Q. That is, you have never volunteered to tell me? A. No, sir.
“Q. Even though you went all through the other trial, and testified you never volunteered to tell me anything about it. Now, when I asked you recently if you had any notion as to whatever became of those rings, was that the first time that you ever told me about seeing this ring?
“Mr. Cassidy: I object.
“The Court: He may answer.
“Mr. Cassidy: Exception.
“A. Yes, sir.
“Mr. Roberts: I think that is all.”

We note from the record that Samuel Meltzer had testified at the former trial only as to the value of the rings involved in the robbery. In the second trial he also testified to the fact that he had seen one of the rings that was taken in the robbery in the possession of a deceased brother of Betty Meltzer.

An examination of the record just quoted fully convinces us that these questions and answers were improper and incompetent. It is very apparent to us that this line of questioning was clearly a cross-examination of defendant’s own witness. Not only is it objectionable on that ground, but it sets forth a conversation between counsel for defendant and his only witness when no one else was present. We know of no theory or rule of evidence that would make these questions and answers proper for the consideration of a jury. We are, therefore, of the opinion that the foregoing answers and questions were improper, incompetent and highly prejudicial to the rights of the plaintiff herein.

On the fourth ground of error complained of, to wit, that the court erred in overruling the objection of' plaintiff to the statements made by counsel for defendant in argument, we note the following in the record:

“Mr. Roberts: Now I had had an opportunity only very casually to talk to Mr. Meltzer before the first trial. The young man in our office who sometimes prepares eases that I try, talked to him—
“Mr. Cassidy: I object to this statement, it has nothing to do with the evidence.
“Mr. Roberts: But Meltzer had not in the first trial said anything at all about the matter of this ring being in the hands of the brother in the fall and I hadn’t known a thing about it, and I was dumbfounded when a week or two ago, expecting the case to come up, I had occasion to talk to him and I just casually, happened to say to him, ‘What do you suppose ever became of those rings?’ I had never thought to ask him that question before; never supposed he had any idea about it, and just casually happened to say, ‘What do you suppose ever become of those rings?’ and then, for the first time, he said, ‘Well, I don’t know, but I saw one of them, the dinner ring, in the possession of the brother in the fall following this.’ I was dumbfounded. I never knew that before; never thought of asking that on the first trial. Now, that is one other thing that is very important to him,.and that is this; if Meltzer was out for the purpose of trying to defeat his wife of a just claim, if his animosity was such that he wanted to defeat her claim, that would have been one of the first things that he would have told us before the trial of the other case. He didn’t breathe it. He didn’t volunteer it at all. He didn’t volunteer it this last time. I just happened to ask the question, not supposing he knew anything about it at all. I just said out of curiosity, ‘Meltzer, what in the world do you suppose ever actually became of those rings?’
“Mr. Cassidy: If the Court please, I object to Mr. Eoberts making a witness out of himself.
“The Court: Oh that is the evidence, Mr. Cassidy.
“Mr. Cassidy: What Mr. Eoberts said?
“The Court: What was said by Mr. Meltzer.
“Mr. Eoberts: Yes.
“The Court: To Mr. Eoberts.
“Mr. Cassidy: How in the world could a conversation between those two be competent in a lawsuit against this girl, Your Honor?
‘ ‘ The Court: Iu explanation.
“Mr. Roberts: That proof has already been offered.
“The Court: Take your exception to the record, Mr. Cassidy; I guess I remember it.
“Mr. Cassidy: All right. Note an exception.”

Keeping and bearing in mind that Mr. Roberts was the attorney for defendant in the instant case, that he was not sworn as a witness and yet proceeded to and did state in argument to the jury— stated what he said to Meltzer, using his exact language, and stated what Meltzer said to him, quoting Meltzer’s exact language. There is no rule of procedure that permits counsel for either party to testify as a witness in his argument to the jury. This in practical effect was what was done in the instant case. The objection to these statements by counsel for plaintiff should have been sustained by the trial court, and the overruling of them and permitting counsel for defendant to so testify was highly prejudicial to plaintiff in error. Therefore it must follow that we do find that prejudicial error has intervened in the instant case for the reasons above stated. ■Therefore this cause is hereby reversed and remanded to the trial court for further proceedings according to law.

Judgment reversed and cause remanded.

Sherick and Montgomery, JJ., concur.

Judges Sherick, Lemert and Montgomery, of the Fifth Appellate District, sitting by designation in the Eighth Appellate District.  