Brown v. Walter
| Decision Date | 16 January 1933 |
| Docket Number | No. 167.,167. |
| Citation | 62 F.2d 798 |
| Parties | BROWN v. WALTER. |
| Court | U.S. Court of Appeals — Second Circuit |
Walter S. Fenton and Fenton, Wing, Morse & Jeffords, all of Rutland, Vt., for appellant.
Harry C. Shurtleff, of Montpelier, Vt., for appellee.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
This case arises out of injuries suffered by the plaintiff from the collision of a motor car which he was driving with a telegraph pole beside the roadway. The theory of the action was that the plaintiff was obliged in an emergency to leave the road to escape the oncoming car of the defendant, which had turned out to the left to pass another going in the same direction, and which the plaintiff could not otherwise avoid. The defence was that while the defendant did turn out to the left to pass, he at once saw the plaintiff's approaching car, and turned back in time to allow the plaintiff to keep in the road and pass him. That the plaintiff became confused, supposed there would be a collision, needlessly turned off the roadway and collided with the pole. The issues were clearly for a jury, and the evidence admitted a recovery; were it not for the incidents of the trial, we should not disturb the result.
The defendant's chief complaint is in the persistent effort of the plaintiff to get and keep before the jury the fact that he was insured; especially in his summation, which charged that the insurer had suborned the defendant and his companions in the car to perjure themselves. This issue requires us to go into a little detail. The plaintiff called the defendant as his witness, and after getting his story, asked whether he had made a report to the state inspector, which was already in evidence, following this by inquiring whether he had not been interviewed by one Aikey, an insurance agent. As there was no attempt to establish any contradiction between what he said to the agent and what he said on the stand, the evidence was clearly incompetent, and could only have been meant to introduce a forbidden element into the case. The plaintiff's wife was then called, and testified that after the accident the defendant was at a house where she was being revived, and where among other things the defendant had said that the car belonged to his father and was insured. This again, though not shown to be deliberate, was extremely prejudicial, and the defendant objected at once, but the judge would not exclude it. When later the witness repeated it, the judge again allowed the testimony to stand, contenting himself with an admonition that the jury should hold itself impartial in spite of the defendant's insurance. Taggart v. Keebler, 198 Ind. 633, 154 N. E. 485. The same testimony came out from the plaintiff while he was on the stand; this time, the defendant unsuccessfully moved for a mistrial.
On his defense the defendant called his companion in the car, a boy named Dudley, who told a story corroborating the defendant's own. On cross-examination, with an altogether unnecessary elaboration had the matter been competent at all, the plaintiff brought out that this witness had signed a statement about the accident for an agent of the insurance company which he had not read, though he had written at its foot that he had. The defendant gave the statement to the plaintiff; it is in evidence; it does not contradict the witness's testimony as to the accident. The only even colorable bearing of the questions was to affect the witness's credibility by showing that he was reckless in what he would vouch for, and it was worth very little even for that. As we have said, the statement corresponded with the testimony; he was not shown to have been ignorant of its contents; it might have been prepared in his presence and he merely assumed it to be correct. The fact that he had written that he read it had only the faintest possible importance in impeaching him; and that purpose could have been fulfilled, without bringing out that the statement was prepared by the insurer. This does not appear, at least on the copy before us; if it had, the testimony was of too little weight to justify its admission at the cost of bringing out the fact of insurance.
All this would have been enough to require a mistrial, had it stood alone, without considering the plaintiff's summation. The first testimony of the plaintiff's wife, if her attorney had shown that it took him unawares, might possibly not be enough, but its repetition by her and the plaintiff was altogether unexcused except by the earlier complaisance of the judge. The question to the defendant was plainly deliberate, and with the cross-examination of Dudley forecloses any doubt. However, it must be owned that the fact of the defendant's insurance properly got before the jury from another source. He called a doctor who had examined the plaintiff and his wife — her case and the plaintiff's were tried together — and who was in the insurer's employ. This witness was evasive in acknowledging his employment, which was a proper subject of inquiry. Mideastern Cont. Corp. v. O'Toole, 55 F.(2d) 909 (C. C. A. 2). Even so, the questions could have been directly put, and if the witness was evasive, might then have been pressed. The cross-examination as to the witness's employment was not as straitly confined to its legitimate purpose as it should have been, and after it was...
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