Consolidated Motors, Inc. v. Ketcham

• Decision Date: 29 March 1937
• Docket Number: Civil 3773
• Citation: 66 P.2d 246,49 Ariz. 295
• Parties: CONSOLIDATED MOTORS, INC., a Corporation, Appellant, v. HOPE KETCHAM, Appellee
• Court: Arizona Supreme Court

66 P.2d 246

49 Ariz. 295

CONSOLIDATED MOTORS, INC., a Corporation, Appellant, v. HOPE KETCHAM, Appellee

Civil No. 3773

Supreme Court of Arizona

March 29, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dave W. Ling, Judge. Judgment reversed and cause remanded with instructions.

Messrs Chalmers & Fennemore, Mr. J. Early Craig, Mr. Virgil T Bledsoe, for Appellant.

Messrs Cox & Moore, for Appellee.

OPINION

LOCKWOOD, J.

This is a suit by Hope Ketcham, hereinafter called plaintiff, against three defendants, Howard W. Blaine, O. E. Baker, and Consolidated Motors, Inc., the latter being called the company, for damages for personal injuries alleged to have been suffered by plaintiff in an automobile accident which occurred November 4, 1934. The situation which gave rise to the action may be stated as follows:

The company is engaged in the business of selling Ford automobiles at retail in Phoenix and vicinity, and Baker and Blaine were salesmen employed by it. Plaintiff claims she was injured by an automobile accident while she, together with several other persons, were riding in an automobile driven by defendant Blaine, the accident occurring some distance from Phoenix while the parties were returning from a dance at Rock Springs, some 40 miles from the former city. At the close of the evidence, the court granted an instructed verdict in favor of defendant Baker, and submitted the case as against Blaine and the company to the jury which returned a verdict in favor of the plaintiff and against the company and Blaine in the sum of $7,500. After the usual motion for new trial was overruled, this appeal was taken.

There are twelve assignments of error, which are grouped by the company under seven heads. We shall, however, not consider them in their order, but discuss first the effect of No. 7, which is that the court erred in failing to grant a new trial for the reason that the question of liability insurance had been improperly injected into the case. The situation upon which this objection is based is as follows: Defendant Blaine had been on the stand in his own behalf and testified quite fully as to what occurred on the night of the accident, and his reasons for believing that the injury of plaintiff, if she was suffering from any at all, was not caused by the accident. Counsel for plaintiff then commenced a cross-examination of the witness, which was at first apparently directed to an attempt to show that he was partially deranged mentally, and thereafter the following colloquy occurred:

"Q.... You made a statement after the 3rd of November about this, didn't you? A. I made statements before and statements after.

"Q. About this accident. You made a statement, a written statement, and signed it, about this accident, after the 3rd of November, didn't you?

"Mr. Wolpe: If the court please, at this time I want to object to that in so far as the defendant Baker is concerned. Any statement Mr. Blaine might have made is not binding on the defendant Baker.

"Mr. Craig: And we make the same objection on behalf of the Consolidated Motors.

"The Court: Go ahead. All right.

"A. I made a statement about this accident as all five of us did.

"Mr. Cox: Q. Where was that? A. I don't know.

"Q. Who did you make it to? A. A lawyer for the insurance company at that time, Charlie Young.

"Mr. Cox: We ask that we have that statement at this time.

"Mr. Craig: We have no such statement.

"Mr. Bledsoe: We were not in the case at that time.

"Mr. Craig: We are representing the Consolidated Motors here; we don't known anything about it.

"Mr. Cox: Q. Where was the statement the last time you saw it? A. At the time I made it, Charlie Young had it.

"Q. Now in this statement --

"Mr. Craig: If your Honor please, we are going to ask -- there is no insurance company in this case, and we would ask that any reference to any insurance company be stricken.

"Mr. Cox: We object to counsel testifying about what there is....

"Mr. Cox: Q. In this statement you made and signed, you said at that time -- do you have it?

"Mr. Wolpe: I don't have it.

"Mr. Cox: Do you, Mr. Conway?

"Mr. Conway: I did not know there was any such statement.

"Mr. Cox: In that statement you made and signed, you said there was no whiskey at any time with the party that night, didn't you?"

It is the contention of the company that by this cross-examination plaintiff called to the attention of the jury that some, at least, of the defendants were protected by a public liability insurance company. The effect of bringing information of this nature to the attention of the jury in a personal injury action has been discussed by us in five different cases. The first was Blue Bar Taxicab Co. v. Hudspeth, 25 Ariz. 287, 216 P. 246, 249. The situation therein was as follows: One of the witnesses for defendant was asked a question in regard to the delivery of some bank checks, to which he replied: "One of them, the agent representing the insurance company, he made the one direct to the Arizona Hospital for $220." Defendant promptly moved to strike that portion of the answer in regard to the insurance company, which motion was resisted by plaintiff, and the same witness was questioned by counsel for plaintiff on the same subject during cross-examination. We said:

"The effect of these questions, together with the answer of the first question, made the fact known, and impressed upon the jury, that back of defendant's liability stood some sort of insurance. This information was not wholly inadvertent, so far as plaintiff was concerned, nor was it a necessary incident of any legitimate evidence. No instruction was given to the jury to cure the effect of it. The consequence of such information is well known, and is sufficient to require a new trial. It is useless for counsel to talk of the innocuous character of this evidence, when they at the same time, in order to get the information before the jury, are willing to imperil any verdict which might be rendered. All lawyers know the rule in regard to such evidence, and they must not expect the court to establish a rule, and then wink at its violation."

And the case was reversed. The same question arose in Tom Reed Gold Mines Co. v. Morrison, 26 Ariz. 281, 224 P. 822, 825. In that case several of the jurors were questioned as to whether they carried public liability insurance, and were informed that the defendant corporation did carry it. We referred to the matter in the following language:

"The defendant's liability in no sense depended upon it, and the injurious effect knowledge of it by the jury was likely to have is so apparent that it is unnecessary to discuss it."

And we cited Blue Bar Taxicab Co. v. Hudspeth, supra, in support of the rule that erroneous reference to the insurance company required a reversal. The next time the matter arose was in Arizona Cotton Oil Co. v. Thompson, 30 Ariz. 204, 245 P. 673, 675. The defense had offered in evidence a statement signed by the plaintiff; the latter contended that it was signed under such circumstances that it was not a fair statement, and, being placed on the stand by the defendant was fully cross-examined concerning his making the statement. His own counsel then said:

"'2. No; just answer the question; did you prepare that statement and sign it? A. I did not.

"'Q. Who prepared it, if you know? A. A gentleman who came out there and introduced himself as adjuster for the insurance company.'"

We said:

"We think this presents a very different situation from that in the Hudspeth Case, supra. Since defendant was relying upon and offering in evidence a statement which had been signed but not written by plaintiff, we think it was not error for plaintiff, in attempting to show that the statement was not a completely ingenuous one, to prove it was actually prepared by one who was very much interested in the result of the case. It also appears that the witness Reagan, when called by the defendant, testified, in answer to questions asked by defendant's counsel, to matters which would undoubtedly inform the jury that defendant was carrying liability insurance."

And we held that under these circumstances plaintiff was justified in his conduct. The question again arose in Hatchimonji v. Homes, 38 Ariz. 535, 3 P.2d 271, 272. A witness had testified in regard to a conversation with the defendant, and was asked by counsel for plaintiff whether she had told all that was said in the conversation about the accident, to which she answered: "I believe I have, only that Mr. Hatchimonji said that he had gone to see the insurance company" -- She was immediately interrupted by counsel for the plaintiff and stopped from going any further. We held that since the reference to insurance was inadvertent and was not brought out by direct questioning, and, further, that no motion was made to strike it, the error did not require reversal. The last time we considered the matter was in Fike v. Grant, 39 Ariz. 549, 8 P.2d 242, 243. The daughter of the plaintiff was on the stand and was asked by her attorney whether she had talked to anyone about the accident, when the following colloquy occurred:

"A. Would you like to know what I asked them?

"Q. You may tell all that was said. A. I went for the purpose of asking Mr. and Mrs. Fike --

"Q. Just a minute. Speak a little slower and talk to the jury. A. I went to the Fike's place of business to inquire about the insurance on their car and Mr. and Mrs. Fike --

"Q. Was that all you asked them? A. No."

At the close of her testimony, defendants' counsel moved that a mistrial be declared on account that insurance had been brought into the case, which motion was denied, and the court, after directing the jury to...