Elite Cleaners & Tailors, Inc. v. Gentry

• Decision Date: 08 June 1973
• Docket Number: No. 4166,4166
• Parties: ELITE CLEANERS AND TAILORS, INC., a Wyoming corporation, and Richard L. Martin, Appellants (Defendants below), v. William S. GENTRY, by his next friend, Mary Lynn Gentry, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 784

510 P.2d 784

ELITE CLEANERS AND TAILORS, INC., a Wyoming corporation, and Richard L. Martin, Appellants (Defendants below), v. William S. GENTRY, by his next friend, Mary Lynn Gentry, Appellee (Plaintiff below).

No. 4166.

Supreme Court of Wyoming.

June 8, 1973.

Carl L. Lathrop, and David D. Uchner, Lathrop, Uchner & Mullikin, Cheyenne, for appellants.

David H. Carmichael, Hanes, Carmichael, Johnson, Gage & Speight, James A. Tilker, Kline & Tilker, Cheyenne, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

This action arose out of an intersection collision at 24th Street and Duff Avenue in Cheyenne. It is undisputed that the intersection was uncontrolled and that the speed limit in that area was 30 miles per hour. The plaintiff, William S. Gentry, who was about 45 years of age at the time of the accident, was operating a motor scooter in an easterly direction on 24th Street. The defendant Richard L. Martin was driving a Ford delivery van owned by Elite Cleaners and Tailors. He was going in a northerly direction on Duff Avenue.

The jury found for plaintiff and against the defendants and returned a verdict of $104,813.41. The defendants have appealed, presenting for our consideration these questions:

(1) Did the trial court err in not granting defendants' motion for a mistrial?

A. Was the mention of 'insurance' by the plaintiff upon direct examination in the personal injury action reversible error?

B. Was the jury guilty of prejudicial misconduct in considering defendants' insurance coverage in their deliberations?

(2) Was there sufficient evidentiary foundation for the opinion testimony of plaintiff's expert, Richard Crawford, as to the point of impact and speed of the vehicles; and was his testimony compentent?

(3) Was the plaintiff, as a matter of law, guilty of contributory negligence or negligence which was the proximate cause of the accident?

Mention of Insurance

Defendants' claim of error in connection with the trial court's denial of their motion for a mistrial is based on the following events which occurred near the end of direct examination of the plaintiff by his attorney David Carmichael:

'Q. How many Doctors have you seen in the course of your treatment? A. Dr. Grizzle here in Cheyenne and in Phoenix Dr. Helme, Dr. Fountain was in charge of rehabilitation and Dr. DePaoli performed the operation on me and I believe I went to Denver to see a neurological surgeon. In Denver I believe he was associated with the insurance company.'

'MR. LATHROP: I would like to strike the last answer as prejudicial and ask the jury to disregard it.'

'THE COURT: Yes.'

'MR. LATHROP: Deliberately induced.'

'THE COURT: I will instruct the jury to disregard the answer completely. It has no part in this case so pay no attention to it.'

'Q. What physical disabilities do you still have? A. I have spastic paralysis on my left side.

'Q. Do you have any pain associated with your condition at the present time? A. It stays at low level if I do keep hot enough. Any time the temperature goes under eighty-five or so I have to put on more and more clothing to stay warm. Stay warm enough I can control it.

'Q. Is that the reason you live in Phoenix? A. Yes, sir.'

'MR. LATHROP: May we approach the Bench?'

'THE COURT: Yes.'

'(Whereupon, the following proceedings were had out of the hearing of the jury:)'

'MR. LATHROP: The defendant would like to move for a mistrial on the grounds that the plaintiff deliberately interjected into his testimony the term 'insurance' and that this will have a prejudicial effect upon this case which can't be wiped out in the mind of the jurors by simply being instructed to disregard the same.'

'MR. CARMICHAEL: I would like to say for the record it wasn't deliberately done. When we went over this section of the testimony I told him if he said anything about it, to say the defendants. I don't know how he got the term 'insurance' but it wasn't deliberately done as far as counsel is concerned and I don't think Mr. Gentry realizes that.'

'THE COURT: We will take a recess.'

'(Whereupon, the following proceedings were had in Chambers:)'

'(Question and answer read)'

'THE COURT: The Court will reserve ruling on the motion at this time.'

Defendants' motion for mistrial was made immediately following the direct examination of plaintiff and before cross-examination. After the close of all evidence and prior to submission of instructions to the jury, the trial court denied the motion for mistrial.

As indicated in the portion of the proceedings set out above, counsel for the plaintiff said he had told the plaintiff, if he said anything about it, to say the defendants. He did not know how plaintiff got the term 'insurance' but it was not deliberately done as far as counsel was concerned, and counsel did not think Mr. Gentry 'realizes that' (the term was not to be used). Appellants argue that this explanation by plaintiff's attorney proves the plaintiff deliberately injected a reference to insurance and that such reference was prejudicial to the defendants.

By weight of authority, if counsel propounds a question which calls for proper evidence, the fact that an irresponsive or inadvertent answer includes a reference to insurance will not be ground for declaring a mistrial. Annotation 4 A.L.R.2d 761, 784 (§ 12); A.L.R.2d Later Case Service, Vols. 1-6, for § 12, pp. 503-508. See also Zanetti Bus Lines, Inc. v. Hurd, 10 Cir., 320 F.2d 123, 129, and Marken v. Empire Drilling Company, 75 Wyo. 121, 293 P.2d 406, 409.

There is authority for the rule that a deliberate injection of insurance coverage into the trial of a damage action presents a basis for a new trial. However, where such testimony slips into the record inadvertently, its admission may be cured by a peremptory order of the trial court striking the same and instructing the jury to disregard it. Kelty v. Best Cabs, Inc., 206 Kan. 654, 481 P.2d 980, 983.

In the trial of the case now before us, opposing counsel immediately moved to strike the answer of the witness in which the words 'insurance company' were used, requesting that the jury be instructed to disregard it. The court agreed with opposing counsel and stated:

'I will instruct the jury to disregard the answer completely. It has no part in this case so pay no attention to it.'

It is quite apparent from the foregoing that the court did all that was required of it to cure any possible prejudice which might otherwise have arisen from the plaintiff's reference to an insurance company. We think no prejudice resulted. Moreover, the court, by denying defendants' motion for a mistrial, will be presumed to have found that the term 'insurance' was inadvertently and not deliberately injected into the record. Accordingly, we hold there was no abuse of discretion and we will not disturb the trial court's ruling on the matter.

In connection with appellants' suggestion that the jury was guilty of prejudicial misconduct because consideration was given to defendants' insurance coverage in the deliberations of the jury, two supporting affidavits have been submitted which were made by jurors. They state generally that there was extensive discussion by other jurors of the fact that defendants had insurance.

In rebuttal of these affidavits, appellee has submitted an affidavit of another juror to the effect that mention had been made during discussions that insurance adjusters had been sitting in the courtroom. This affiant claimed the two jurors who made affidavits for appellants related many instances where, according to them, insurance companies had been taken advantage of by persons who pretended injury for the purpose of receiving a much higher award of damages than they were entitled to. The affiant said a discussion ensued as to whether plaintiff was one of those persons. This juror claims the instructions of the court were then reread, including one to the effect that the jury restrict its consideration to only the facts in evidence. According to him, the matter of insurance was thereafter neither mentioned nor considered by the jurors in arriving at their decision.

The conflicting nature of appellants' affidavits and appellee's affidavit in this particular case demonstrates in and of itself how futile it would be for an appellate court to try to review a verdict by speculating on how the jury arrived at such verdict. More than once this court has said affidavits of jurors in regard to what was said or considered during jury deliberations must be disregarded. York v. North Central Gas Company, 69 Wyo. 98, 237 P.2d 845, 852; Pullman Co. v. Finley, 20 Wyo. 456, 125 P. 380, 386-387; Bunce v. McMahon, 6 Wyo. 24, 42 P. 23, 27-28.

Except where a verdict is arrived at by lot or chance or by other than fair expression of opinion by all jurors, it is generally held that a verdict cannot be impeached by an affidavit of a member of the jury. ¹ We find no reason in this case to make an exception to the rule that a juror's affidavit is not admissible to impeach his verdict.

Expert Testimony

At the trial of this case Richard Crawford, a mechanical engineer and professor at the College of Engineering of the University of Colorado, testified as an expert for the plaintiff. He was asked a hypothetical question pertaining to the speed of the Elite Cleaners truck before brakes were applied and at the point of collision. The question was based upon stipulated facts pertaining to the weight of Gentry and the weight of both the truck and motor scooter and upon testimony of the investigating officer.

This testimony covered the location of impact debris; measurements of brake and skid marks left by different wheels of the truck before and after impact; gouge marks made by the scooter after impact; the distance and direction which the scooter and rider went after impact; and where the truck came to rest. Also, four pictures taken by the...