Fielding v. Publix Cars, Inc., 29514

CourtSupreme Court of Nebraska
Writing for the CourtCARTER, J.
Citation265 N.W. 726,130 Neb. 576
Docket Number29514
Decision Date13 March 1936

265 N.W. 726

130 Neb. 576



No. 29514

Supreme Court of Nebraska

March 13, 1936

APPEAL from the district court for Douglas county: WILLIS G. SEARS, JUDGE. Reversed.


Syllabus by the Court.

1. In an action against a taxicab company for injuries to a passenger, it is reversible error for the trial court to permit plaintiff on his case in chief to show that defendant is indemnified from loss by an insurance company, where such proffered evidence is not relevant to any material issue in the case.

2. The rule of practice promulgated in Jessup v. Davis, 115 Neb. 1, 211 N.W. 190, 56 A.L.R. 1403, and heretofore followed by this court, to the effect that plaintiff may, in a personal injury action, by appropriate interrogatories on cross-examination, establish that defendant is indemnified from loss by an insurance company is hereby revoked, such revocation to be effective 20 days from the date of the release of this opinion.

Appeal from District Court, Douglas County; Sears, Judge.

Action by Eugene Fielding against Publix Cars, Incorporated, Elmer Denson, B. J. Reynolds, and others. Judgment for plaintiff, and from an order refusing a new trial, named defendants appeal.

Reversed and remanded.

EBERLY and DAY, JJ., dissenting. [265 N.W. 727]

Wear, Boland & Nye, for appellants.

Gaines, McGilton, McLaughlin & Gaines, L. Q. Hills and Bernard R. Stone, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, PAINE and CARTER, JJ. EBERLY, J., DAY, J., dissenting.



In this action the plaintiff sued the defendants for damages for personal injuries sustained while riding in a cab belonging to the Publix Cars, Inc. The jury returned a verdict for $ 5,000 and judgment was entered thereon. From the overruling of their motion for a new trial, defendants bring the case to this court on appeal.

The evidence of the plaintiff was to the effect that he hired the cab to take him to his home, and, while so doing, the cab driver suddenly and without warning applied his brakes and caused plaintiff to be thrown forward against the front seat of the cab. The evidence further shows that [130 Neb. 577] plaintiff suffered a broken jaw and complications as a result thereof that necessitated many operations, much pain and suffering, and a scarred and misshapen face and jaw.

Defendants complain of the action of the trial court in permitting the plaintiff to show by the president of Publix Cars, Inc., on direct examination, that Publix Cars, Inc., carried liability insurance. The record discloses that plaintiff called Guy Thomas, president of Publix Cars, Inc., as a witness and adduced the following testimony: "Q. Do you carry a policy of automobile insurance protecting your company against accidents to persons driving and riding in your cabs for fare? Do you carry such a policy of insurance? * * * A. Yes; we carry a five-thousand dollar policy." The defendants objected to this question before the answer was given, for the reason that it was incompetent, immaterial and irrelevant, and not within the method of procedure laid down by the supreme court in similar cases. The overruling of this objection is assigned as reversible error.

It is the contention of plaintiff that the evidence was admissible to prove ownership of the cab and that the relation of master and servant existed. The plaintiff alleges in his petition, however, that one Reynolds was the owner of the cab in which the accident occurred, so that the evidence could not have been properly admitted for that purpose. We agree with plaintiff's counsel that evidence that defendant carried liability insurance is admissible to prove the relation of master and servant, or any other relation upon which liability can be predicated, where, as in the case at bar, it is an issue under the pleadings. Biggins v. Wagner, 60 S.D. 581, 245 N.W. 385; Burns v. Getty, 53 Idaho 347, 24 P.2d 31; Gayheart v. Smith, 240 Ky. 596, 42 S.W.2d 877. But, in the case at bar, the form in which the question was asked precludes this argument because it shows on its face that it did not tend to prove any such issue. The question asked made no reference to the cab in which plaintiff was riding at the time of the accident and was clearly offered for the purpose of informing the jury [130 Neb. 578] that an insurance company, and not the defendants, would pay any judgment they might render. Plaintiff also contends that the evidence that defendants carried liability insurance was admissible under the rule of practice adopted in the case of Jessup v. Davis, 115 Neb. 1, 211 N.W. 190, and cites Nichols v. Owens Motor Co., 121 Neb. 105, 236 N.W. 169, and Combs v. Owens Motor Co., 121 Neb. 5, 235 N.W. 682, to sustain his contention. It is true that in those cases it was held that it was not prejudicially erroneous for plaintiff to show on his case in chief that defendant carried liability insurance, but in those cases it was not contended that the judgments were excessive, and the error of the trial court in permitting it to be shown could not have been prejudicial to the defendant. But such is not the situation in the case at bar. We hold that the evidence in question did not fall within the rule of practice set out in Jessup v. Davis, supra, such rule being as follows: "Where a plaintiff in a personal injury action seeks by appropriate interrogatories on the cross-examination to discover whether the [265 N.W. 728] defendant is indemnified from loss by an insurance company, it is error for the court to sustain an objection to interrogatories which tend to develop the fact on that question." See Miller v. Central Taxi Co., 110 Neb. 306, 193 N.W. 919. We therefore hold that the admission of the evidence relative to liability insurance was prejudicially erroneous.

Defendants contend that the rule of practice promulgated by this court in the case of Jessup v. Davis, supra, is unsound and not sustained by legal authority, and request a reconsideration of the rule by this court. The question whether the plaintiff has a right to show that the defendant carries liability insurance first came before this court in the case of Egner v. Curtis, Towle & Paine Co., 96 Neb. 18, 146 N.W. 1032. In that case the court announced the following rule: "Where a defendant, in a personal injury action, is indemnified by an employers' casualty insurance company, it is proper for plaintiff's counsel to show such fact when impaneling the jury, and to inquire of each juror [130 Neb. 579] upon his voir dire if he is a stockholder or agent, or in any manner interested in such company." This rule was followed in Koran v. Cudahy Packing Co., 100 Neb. 693, 161 N.W. 245, and Penhansky v. Drake Realty Construction Co., 109 Neb. 120, 190 N.W. 265. The right of counsel to interrogate jurors on their voir dire examination in order to determine whether it is expedient to challenge any of them peremptorily, within proper limits, cannot be denied. The authorities differ on this question on the method of interrogation to be employed rather than on the right. We are impressed with the method approved by the Michigan court in the case of Holman v. Cole, 242 Mich. 402, 218 N.W. 795, wherein the court say: "In the case before us, the inquiry referred to a foreign corporation. We feel forced to the conclusion that the purpose of counsel in asking each one of the jurors called if he was interested as a stockholder in such company was not for the purpose of obtaining information, but to impress upon their minds that the defendant was protected by insurance and would not be personally liable for any judgment entered in the case. If information alone was sought, it might easily have been obtained by asking the jury collectively if any of them were stockholders in any corporation, and, if they were, to have asked the kind of a corporation they were interested in." We can conceive of situations even under the foregoing rule where it would be necessary to go into the question further and bring out the name of the insurance company involved. We cannot say, therefore, that the rule heretofore announced with reference to the interrogation of juries on voir dire on this subject is unsound. The limits to which counsel may go in interrogating the jury must rest largely in the discretion of the trial court, viewed in the light of the situation as it comes before it.

But, where the plaintiff shows that defendant carries liability insurance, when it is not relevant to some issue in the case, we have come to the conclusion that it is inadmissible. Such evidence can have no relevancy to the question of negligence. It cannot be disputed that there are cases [130 Neb. 580] where liability insurance may be the subject of evidence, or the object of interrogatories, if the fact of insurance bears upon an issue in the case. In other words, if the evidence is properly admissible for any purpose, it cannot be excluded for the reason that it tends to prejudice the defendant because it shows or tends to show that he carries liability insurance. We have examined with care the opinion in the case of Jessup v. Davis, supra, as well as the opinions of the court of appeals of the District of Columbia, three circuit courts of appeal and the courts of last resort in 40 sister states, all holding to the contrary. We will not take the space to quote from each of these holdings. A discussion of a large number of cases contrary to Jessup v. Davis, supra, and supporting the rule we now believe to be the correct one, will accomplish no good purpose. We will, however, cite a few authorities that we believe state the better rule.

In dealing with this question, the court in James Stewart & Co. v. Newby (C. C. A. 4th Circuit) 266 F. 287, said: "This court must take cognizance of the general recognition among the members of the bar, as well as by the courts,...

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