Opinion
Feb. 25, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 587
Morrissey & Morrissey, Michael F. Morrissey, Denver, for plaintiff in error.
Wood, Ris & Hames, Thomas T. Crumpacker, Denver, for defendant in error.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiff in error, plaintiff below, and referred to hereinafter as the plaintiff, commenced this action to recover damages for personal injuries suffered as the result of a slip and fall in a bowling alley while she was engaged in a bowling match. The defendant in error, defendant below, and hereinafter referred to as the defendant, admitted that the plaintiff was a paying customer but denied all other allegations and set up certain affirmative defenses.
The original trial resulted in a verdict of $5,000 in favor of the plaintiff. Defendant's motion for new trial was granted and the matter was reset for trial. Defendant was successful in obtaining a verdict in its favor at the close of the second trial.
Plaintiff now assigns as error the trial court's granting of defendant's motion for new trial following the first trial.
Unfortunately, the trial court reporter mislaid his notes regarding the proceedings held at the time the original motion for new trial was argued and granted. The only record we have for review as to this portion of the trial is a reconstruction of arguments of counsel and the court's ruling and the basis thereof as recalled by counsel and the court almost two years after the ruling was made. The court and counsel made this reconstruction by placing statements of their recollection of the arguments and rulings made into the record, after reviewing written notes which each of them had made on the date of argument on the motion. This reconstruction indicates that the principal basis for the court's ruling was that both sides had inadvertently, through testimony, brought into evidence the fact that the defendant was insured, and that there had been mention of the insurance factor during the voir dire examination. The court further noted that during testimony and closing arguments plaintiff's attorney emphasized that defendant was a large corporation and well able to respond in damages. The court ruled that the cumulative effect of the repeated references to insurance and the defendant's ability to pay denied defendant a fair trial even though the jury was cautioned regarding these matters.
Our review of this matter is hampered in that, by stipulation of the parties, the final arguments of counsel at the original trial were not recorded; so we must accept the court's recollection that damaging statements were made by plaintiff's counsel in final argument regarding the defendant's ability to pay.
It is well established that statements of counsel regarding a defendant's ability to pay can be sufficient, in and of themselves, to warrant granting a new trial, in that they go outside of the record to appeal to passion and prejudice. Lewis v. Oliver, 129 Colo. 479, 271 P.2d 1055 (1954); National Surety Co. v. Morlan, 91 Colo. 164, 13 P.2d 260 (1932); Bartell v. Griffin, 47 Colo. 569, 108 P. 171 (1910); Coe v. Van Why, 33 Colo. 315, 80 P. 894 (1905); Grant v. Varney, 21 Colo. 329, 40 P. 771 (1895).
Plaintiff cites Celebrities Bowling, Inc. v. Shattuck, 160 Colo. 102, 414 P.2d 657 (1966), as an instance where a statement regarding the defendant's financial worth was made by plaintiff's counsel during closing argument and was not considered to be reversible error. The Colorado Supreme Court, in considering the particular utterance involved, said at page 108, 414 P.2d at page 660:
'* * * The statement, considering the context in which it was made, did not involve an appeal to the passions or prejudices of the jury. More specifically, we construe the statement as more of a reference to the size of defendant's facilities rather than a conscious attempt to offer the wealth of the defendant as a consideration for the jury.'
The situation is apparently different in the case at bar, in which the trial court has stated that the references were made both in the testimony and in the final argument, and apparently involved an appeal to the passions or prejudices of the jury. Unfortunately, we are unable to compare the statement made in the Celebrities Bowling case with the statements made in the final argument in this action, due to the lack of a record on this point. However, the burden is on the party asserting error in this instance to present a record which discloses the error. The determination of the trial court is presumed to be correct until the contrary affirmatively appears. Marcotte v. Olin Mathieson Chemical Corp., 162 Colo. 131, 425 P.2d 37 (1967); Cole v. Kyle, 141 Colo. 492, 348 P.2d 960 (1960). On the record before us, even if the only basis for the trial court's granting of the motion for new trial were the various statements made regarding the ability to pay, we would not consider this an abuse of discretion warranting reversal by this Court. Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185 (1965); Cook v. Doud, 14 Colo. 483, 23 P. 906 (1890).
While the infusion of insurance into a case will not, in and of itself, always warrant the granting of a new trial, there are instances where this matter can be considered prejudicial, Moyer v. Merick, 155 Colo. 73, 392 P.2d 653 (1964).
The trial court determined that the cumulative effect of the several references to insurance in this case, and the repeated allusion to the defendant's ability to pay, formed sufficient grounds for granting a new trial. We rule that the court did not abuse its discretion in granting the motion for new trial.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.