# Flanagan v. Mott

> West Virginia Supreme Court · May 17, 1960 · 145 W. Va. 220

URL: https://www.frixlaw.com/law-library/cases/9606032

## Case

- **Full name:** Edith Flanagan v. Walter O. Mott, Sheriff, Administrator of the Estate of Lonnie F. Dayton, Deceased, and Osgood Bus Lines, Inc., a Corporation; And Edith Flanagan v. Walter O. Mott, Sheriff, Administrator of the Estate of Lonnie F. Dayton, Deceased
- **Court:** West Virginia Supreme Court
- **Decided:** May 17, 1960
- **Citations:** 145 W. Va. 220; 114 S.E.2d 331; 1960 W. Va. LEXIS 22
- **Precedential status:** Published
- **Opinion:** Dissent by Browning
- **Judges:** Given, Browning
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9606032

## Opinion text

Browning, President,
dissenting:
I agree with the law enunciated in all six syllabus points, but disagree with the application of the 6th Syllabus Point to the facts in this case.
There were two defendants, and, .from the beginning of the trial, each contended to the court and jury that the plaintiff should recover, but each maintained that the plaintiff should recover from the other defendant. Actually, the trial developed primarily into a contest between' the two defendants, each attempting to shift liability to the other. As related in the majority opinion, it was made clear to the jury that “Mr. Dayton’s Company” paid for the damages suffered by the Osgood Bus Lines, Inc. Then on cross-examination, it was developed that the “agents” of “Your Company and my Company got together here in Keyser the day following the accident.”, and contacted the passengers with reference to their injuries and attempted to secure releases. The witness said: “* * * your Company and my Company did that together.” I agree with the statement of the trial judge in overruling the motion to set aside the verdict when he said: “* * * I might say that this jury would be terribly stupid if they didn’t know there was insurance on both sides.”
*232 It is obvious that the jury understood that counsel for the plaintiff in his closing argument to the jury meant Osgood Bus Lines, Inc., and not an insurance company when he said: “What is it going to take to teach this insurance company a lesson 1 ’ ’ His argument was directed against the practice of the Bus Company of violating the statute by parking on a bridge to discharge passengers, a practice which the evidence shows it had followed for several years. Furthermore, counsel immediately stated that he meant the Osgood Bus Lines, Inc., and not an insurance company. This Court has not peremptorily found reversible error in every case where the word “insurance.” has been used. In Moorefield, Admr. v. Lewis, 96 W. Va. 112, 123 , S. E. 564, counsel for the plaintiff in his opening statement to the jury said: “I might say that the defendant, Mr. Lewis, has insurance.” Upon prompt objection, the trial court ruled the statement improper and informed the jury it should not consider it. There was a verdict for the plaintiff which was affirmed by this Court. See also Butler v. Stull, 140 W. Va. 31 , 82 S. E. 2d. 278, and Adkins v. Smith, 142 W. Va. 772 , 98 S. E. 2d. 712. All of the cases decided by this Court upon this question, prior to the date of the decision in Butler v. Stull, 140 W. Va. 31 , 82 S. E. 2d. 278, are collected in the opinion of that case. It will be observed from these cases that, where the word “insurance” is used in the trial of a case so as to inform the jury that one of the parties is protected by insurance, the Court will closely scrutinize the entire proceedings to determine the effect, if any, upon the verdict, and if the slightest inference of prejudice appears, the verdict will be set aside and a new trial awarded, but, where a plain case for recovery has been established by the whole evidence and there is nothing to indicate that the jury was improperly influenced thereby, the rule is otherwise. I agree with the statement in the majority opinion that: “* * * We find nothing in the amount of the verdict returned to indicate any prejudice or improper motive on the part of the jury.”
*233 The doctrine of harmless error is deeply imbedded in onr jurisprudence, and this Court should not be alerted to discover loopholes in order that the guilty may escape their just deserts in criminal cases, or that a plaintiff or a defendant should be denied the rights which have accrued to him by virtue of having secured, by a fair trial, a jury verdict in his favor, especially when such a verdict has the approval of the trial court by judgment having been entered upon it.
I dissent and would affirm the judgment of the Circuit Court of Mineral County.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9606032. Public record. Not legal advice.