Bliss v. Moore

• Decision Date: 07 October 1941
• Citation: 22 A.2d 315,112 Vt. 185
• Parties: MARION G. BLISS v. CASSAN E. MOORE & CLARENCE R. STOUGHTON
• Court: Vermont Supreme Court

22 A.2d 315

112 Vt. 185

MARION G. BLISS v. CASSAN E. MOORE & CLARENCE R. STOUGHTON

Supreme Court of Vermont

October 7, 1941

May Term, 1941.

Subrogation.---1. Subrogation Claim in Insured's Name.---2. Reimbursement Immaterial in Negligence Action.---3. Error in Identifying Insurance Company as Party.---4. Nominal Party's Interest in Case.---5. Prejudice in Cross Examining on Immaterial Matters.---6. Charge Can Not Cure Prejudicial Evidence.---7. Prejudice in Inquiry as to Inadmissible Matters.---8. Opinion Evidence Without Hypothesis, No. 47 of Acts of 1939.---9. Expert Opinion Not Based on Speculation.---10. Striking Improper Opinion Evidence.

1. Fire insurance policies are contracts of indemnity and it is proper to bring actions for reimbursement on account of losses paid in the name of the property owner alone.

2. It is immaterial and irrelevant to any issue in a fire insurance reimbursement case that the nominal plaintiff has been indemnified in whole or in part for her loss by some third party.

3. It constitutes reversible error needlessly to bring to the attention of the jury the fact that an insurance company is prosecuting or defending a case.

4. Claimed inconsistency in a party's position consisting of alleged statements that the party has nothing to do with the case does not appear when such statement indicates her true relation to the case as a nominal party.

5. The latitude of cross examination can not be extended to such an extent as to permit the injection of matters irrelevant to any issue in the case and prejudicial to the party being examined.

6. The charge of the court that an action brought in the name of a nominal party is proper procedure can not cure an error made in the admission of evidence prejudicial to the real party in interest.

7. Inquiry as to an affirmative answer from a party as to conversation itself inadmissible because not material and prejudicial is, under the circumstances of this case likewise improper.

8. It is not improper to ask a witness his opinion based upon facts indicated by the evidence if there is evidence tending to show the facts when the only objection made is the absence of such facts, No. 47 of Acts of 1939.

9. An opinion of an expert must be based on facts disclosed by the evidence in the case and not in whole or in part on speculation of the witness as to what might have been the evidence.

10. When an opinion of an expert is admitted as being based on evidence in the case and further examination discloses that the opinion is based on matters not in evidence but in part on conjectures of the witness, a motion to strike the opinion should be granted.

ACTION OF TORT for negligence in setting a fire. Trial by jury Rutland County Court, September Term, 1940, Cushing, J presiding, verdict and judgment for defendants. The opinion states the case.

Judgment reversed and cause remanded.

Edward G. McClallen, Jr., and Lindley S. Squires for plaintiff.

Asa S. Bloomer for defendants.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

JEFFORDS

The plaintiff's home and the personal property therein were destroyed by fire. She brought this action against the defendants on the claim that the fire was caused by the negligence of their servant while engaged in attempting to repair a water pump located in a shed attached to the house. During the trial certain evidence was put in by the defendants over the objections and exceptions of the plaintiff. The rulings of the court as to the admissibility of this evidence present the only questions here for review.

During the cross examination of the plaintiff the following questions were asked and answers given: "Q. Now Miss Bliss, some time in February of 1940 were you at Mr. McShane's house? A. Yes, that is I am staying there, yes. Q. Yes, you were there, is that right? A. Yes. Q. And during that month Mr. Moore came to see you, did he? A. Yes. Q. He spoke to you about some action that had been brought against Mr. Moore and others? A. Yes. Q. In substance he said to you on that occasion I came up to ask you if you were bringing this action against us' is that about what he said? A. About. Q. And you answered, No, I have nothing to do with it,' is that right? A. Practically, approximately that way. Q. It is the insurance company,' is that right? A. Yes. Q. I wish I could wash my hands of the whole affair?' A. I don't remember that, no, no."

At this point counsel for the plaintiff interposed an objection on the ground that this conversation was inadmissible on any issue in the case and was being brought in for the improper and inadmissible purpose of showing that some one other than the plaintiff was bringing the suit.

There was some discussion of the point and the court ruled that the evidence was admissible, apparently from its remarks in making the ruling treating the exception as timely.

The plain inference to be drawn from this testimony is that an insurance company was obliged to pay the plaintiff on account of the loss occasioned by the fire and it is bringing this suit in her name alone. Inasmuch as fire policies are contracts of indemnity this was the proper procedure to follow. Cushman & Rankin Co. v. Boston & Maine Railroad, 82 Vt. 390, 73 A. 1073, 18 Ann. Cas. 708; Harding v. Town of Townshend, 43 Vt. 536, 5 Am. Rep. 304; Ide v. Boston & Maine Railroad, 83 Vt. 66, 86, 74 A. 401; Brown v. Vt. Mutual Fire Ins. Co., 83 Vt. 161, 74 A. 1061, 29 L.R.A. (N.S.) 698. It was immaterial and irrelevant to any issue in the case that the plaintiff had been indemnified in whole or in part for her loss by some third party. Northeastern Nash Auto Co., Inc. v. Bartlett, 100 Vt. 246, 258, 136 A. 697. See, also, cases cited supra.

We have held repeatedly that it constitutes reversible error to needlessly bring to the attention of the jury the fact that an insurance company is defending a case. Hutchinson v. Knowles, 108 Vt. 195, 200, 184 A. 705; Ryan v. Barrett, 105 Vt. 21, 162 A. 793 and cases cited therein. There is no good reason why the same holding should not be made when, as here, insurance by the plaintiff is needlessly injected for consideration by the jury. The same result is evidently intended in each instance, i.e., to prejudice the jury and influence their verdict against the insured party.

The defendants attempt to justify the ruling of the court on the ground that the statements made by the plaintiff including the reference to the insurance company show inconsistent positions taken by the plaintiff in respect to her claimed right of recovery. But there was no such inconsistency on her part for it is evident she was merely stating then the position now apparently taken by her, that of a nominal party to the action.

The situation is not changed because this evidence came in as part of the cross examination of a party. The latitude of such examination cannot be extended to such an extent as to permit the injection of matters irrelevant to any issue in the case and prejudicial to the party being examined.

The court in its charge instructed the jury that if, as indicated by the evidence, this action was being brought for the benefit of an...