Curtis v. Ficken

Decision Date30 November 1932
Docket Number5850
Citation16 P.2d 977,52 Idaho 426
PartiesH. R. CURTIS, Respondent, v. H. R. FICKEN, Appellant
CourtIdaho Supreme Court

AUTOMOBILES - NEGLIGENCE-DOCTRINE OF RES IPSA LOQUITUR-TRIAL-WITNESSES-EVIDENCE-INSURANCE OF DEFENDANT.

1. In action for injuries, plaintiff's testimony that defendant said, "They surely should pay my doctor bill," held not objectionable as suggesting insurance.

2. Refusal to admit unidentified statement as to accident held not abuse of discretion, where plaintiff could not say whether this was statement he signed.

3. Trial court has large discretion, and questions and answers must be considered separately in determining whether plaintiff in examination of witnesses showed indirectly that defendant carried insurance.

4. It is usually error to intentionally elicit from defendant's witnesses statement that defendant carries insurance.

5. Facts showing interest or bias of witness may be elicited though cross-examination necessarily discloses that defendant carries liability insurance.

6. Cross-examination in accident case to show physician was regular examiner for insurance company held not prejudicial error, where physician had testified concerning plaintiff's statements as to circumstances of accident.

7. Cross-examination to show bias, interest or credibility should be carefully controlled.

8. Instruction that skidding of automobile alone would not necessarily show negligence, if erroneous, held in effect invited, in view of request.

9. In guest's action for injuries when car suddenly skidded and went over embankment, instruction submitting driver's liability under res ipsa loquitur doctrine held not erroneous.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. A. O. Sutton, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Ed. R Coulter, for Appellant.

The doctrine of res ipsa loquitur has no application to the instant case, because where specified acts of negligence are pleaded the plaintiff will be required to prove the specific acts alleged and cannot rely on the presumption of negligence under the doctrine of res ipsa loquitur. (2 Blashfield on Automobile Law, sec. 26, p. 1625; Burke v Dillingham, 84 Cal.App. 736, 258 P. 627, 628; 45 C. J., p. 1148, sec. 739; Id., pp. 1200, 1206, 1212, 1213, 1223; Maupin v. Solomon, 41 Cal.App. 323, 183 P. 198; Nawrocki v. Chicago City R. Co., 156 Ill.App. 563; Wilson v. St. Joe Boom Co., 34 Idaho 253, 200 P. 884.)

The skidding of a car on an icy, slippery road is not an incident upon which negligence is predicated. Hence there is no presumption of negligence under which the doctrine of res ipsa loquitur is applicable. (Arnold v. Brereton, 261 Mass. 238, 158 N.E. 671; Bank v. Satran, 266 Mass. 253, 165 N.E. 117; Barret v. Caddo Transfer & W. Co., 165 La. 1075, 58 A. L. R. 261, 116 So. 563; Bartlett v. Town Taxi, 263 Mass. 215, 160 N.E. 797; Berry on Automobiles, 6th ed., sec. 249; 1 Blashfield on Automobile Law, p. 269; Burke v. Cook, 246 Mass. 518, 141 N.E. 585; De Antonio v. New Haven Dairy Co., 105 Conn. 663, 136 A. 567.)

The court committed error in permitting the respondent to get before the jury the fact that the defendant and appellant carried public liability insurance. The particular erroneous rulings of the court are set forth in the second and fourth specifications of error. (Automobile Insurance by Simpson, 2d ed., 379, 383, and the cases there cited; 56 A. L. R. 1418 et seq.; Crossler v. Safeway Stores, 51 Idaho 413, 6 P.2d 151; Faris v. Burroughs Adding Machine Co., 48 Idaho 310, 282 P. 72; Rosumny v. Marks, 118 Ore. 248, 246 P. 723, 726; Steve v. Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363; Wells v. Morrison, 121 Ore. 604, 256 P. 641-643.)

George Donart and John H. Norris, for Respondent.

When an instrumentality which causes an injury is shown to be under the management of the defendant and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, the doctrine of res ipsa loquitur is applicable. (Warner v. Pittsburgh-Idaho Co., Ltd., 38 Idaho 254, 220 P. 492; Wilson v. St. Joe Boom Co., Ltd., 34 Idaho 253, 200 P. 884; Kenney v. Antonetti, 211 Cal. 336, 295 P. 341; Wright v. Southern Counties Gas Co., 102 Cal.App. 656, 283 P. 823; Moore v. Steen, 102 Cal.App. 723, 283 P. 833; Michener v. Hutton, 203 Cal. 604, 59 A. L. R. 480, 265 P. 238; Francisco v. Circle Tours, etc., 125 Ore. 80, 265 P. 801; Kilgore v. Brown, 90 Cal.App. 555, 266 P. 297.)

A party against whom a witness is called is permitted to show by cross-examination that such a witness has an interest, direct or collateral, in the result of the trial, or such a relationship to one party that bias might arise, and this right is not to be abridged or denied because incidentally facts may be developed by such cross-examination tending to show that the defendant is protected by insurance. (Jessup v. Davis, 115 Neb. 1, 211 N.W. 190, 56 A. L. R. 1403, and note, pp. 1439-1543; Skoug v. Minton, 145 Wash. 119, 259 P. 15; Cozad v. Raisch Improvement Co., 175 Cal. 619, 166 P. 1000; Lenahan v. Pittston Coal Min. Co., 221 Pa. 626, 70 A. 884.)

GIVENS, J. Lee, C. J., and Budge, Varian and Leeper, JJ., concur.

OPINION

GIVENS, J.

Appellant, driving his own automobile, was going duck hunting with respondent as his gratuitous guest. Descending an inclined road leading to certain river bottoms, the desired hunting ground, the car suddenly skidded, turned across and from the track of the road, and went over a steep embankment on one side of the road, rolling and turning over and injuring both parties.

Respondent sued appellant for general negligence in the driving of the car, and recovered a judgment for damages from which this appeal was taken.

The second assignment of error is that this portion of the direct examination of respondent improperly advised the jury that appellant carried insurance:

"Q. Was anything said at the time by the defendant Ficken to the effect that you were entitled to damages for this injury? Just answer yes or no, whether there was.

"A. Yes sir.

"Q. What did he say?

"Mr. Coulter: We object to that as incompetent, irrelevant and immaterial.

"The Court: He may answer.

"Mr. Donart: What did he say?

"A. He said they surely should pay my doctor bill."

There was nothing in the answer to suggest insurance.

Error is urged because the court refused to admit what appellant claimed was a typewritten statement as to the accident, made by respondent. Respondent admitted he signed a statement, but so soon after the accident his mind was confused and he could not say the one offered was, as to the substance thereof, the one he signed. The party who procured the statement, though present at the trial, never identified it. No abuse of discretion was shown.

Dr. Conant, an expert physician for appellant, testified in chief that when he made an examination of respondent, respondent stated to him that he and appellant, were watching the ducks down in Whitley Bottoms, and that he (appellant) drove the car off the road. Respondent denied having said this.

Dr. Conant also testified tending to minimize respondent's injuries, by stating that his examination of respondent and X-rays did not show a permanent injury to respondent. On cross-examination the following took place:

"Q. In whose employ are you in this case?

"A. The defendant.

"Q. To whom do you look for your pay in this case?" Objection and Ruling.

"Q. To whom do you look for your pay?

"A. To Mr. Coulter.

"Q. Yes, but where do you know that that pay is coming from?

"A. General Insurance Company.

"Q. You are their examiner, are you not, or one of their examiners?

"A. Yes sir."

The error complained of in this specification is that under the guise of testing the interest of the witness, plaintiff was permitted to get before the jury the fact that defendant carried public liability insurance on his car at the time of the accident. Much must be left to the discretion of the trial court, and each question and answer must be considered by itself. (Steve v. Bonners Ferry Lumber Co., 13 Idaho 384, 398, 92 P. 363.)

Wilson v. St. Joe Boom Co., 34 Idaho 253, 200 P. 884, Cochran v. Gritman, 34 Idaho 654, 664, 203 P. 289, and Faris v. Burroughs Adding Machine Co., 48 Idaho 310, 282 P. 72, considered the examination of a juror. Crossler v. Safeway Stores, 51 Idaho 413, 80 A. L. R. 463, 6 P.2d 151, considered the cross-examination of a witness already shown to be manager of appellant. A gratuitous statement attributed to him about the company having insurance, therefore, had no bearing on his bias or interest. Some authorities hold it erroneous for plaintiff to bring out on direct examination of his witnesses or by documentary evidence that defendant carries insurance. [1]

Others hold it improper for plaintiff to cross-examine defendant for the purpose of eliciting a statement that defendant carries insurance. [2] It is usually erroneous for plaintiff to intentionally elicit from defendant's witnesses a statement that defendant carries insurance, or to ask them questions which intimate that such is the case. [3] It has also been held erroneous for counsel to comment during the trial or argue to the jury to the effect that defendant carries insurance. [4] However, there is a well-defined exception to the rule holding such evidence to be inadmissible, to the effect that facts tending to show interest or bias on the part of a witness may be elicited on cross-examination, even though such examination necessarily discloses that defendant in such action is protected by insurance. [5]

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