Fixico v. Harmon
| Decision Date | 29 June 1937 |
| Docket Number | Case Number: 26617 |
| Citation | 1937 OK 431,180 Okla. 412,70 P.2d 114 |
| Parties | FIXICO v. HARMON |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR - Whether Testimony in Personal Injury Case Prejudicial in Informing Jury Defendant Was Protected by Liability Insurance Held Dependent on Facts and Circumstances of Case.
Whether or not testimony is prejudicial and effectively informs the jury that a judgment against the defendant would be protected by insurance, or amounts to an unwarranted appeal to the prejudice of the jury, depends essentially upon the facts and circumstances peculiar to the case considered.
2. APPEAL AND ERROR - Harmless Error - Admission of Incompetent Evidence.
Before a cause will be reversed on account of the admission of incompetent evidence, it must affirmatively appear that the admission of such evidence probably resulted prejudicially to the interests of the one making such objection.
3. AUTOMOBILES - Action Against Owner for Personal Injuries to Passenger - References to Liability Insurance Held not Prejudicial to Defendant - Certain Evidence Held Properly Admitted and Instructions Free From Error.
Record examined, and held, that the facts and statements here are too remote and indefinite to constitute prejudicial notice to the jury that the defendant would be protected from judgment by insurance, or to amount to an unwarranted appeal to prejudice. Held, further, that certain evidence complained of was properly admitted and no error appears in the instructions of the trial court.
Appeal from District Court, Okmulgee County; S.L. O'Bannon, Judge.
Action by Emma J. Harmon against Katie Fixico, now Freeman, et al. Judgment for plaintiff and defendants appeal. Affirmed.
Richard Martin, Hal Crouch, Phillip N. Landa, and Q.D. Gibbs, guardian ad litem, for plaintiff in error.
W.C. Alley and E.M. Carter, for defendant in error.
¶1 The relative positions of the parties here are reverse to that occupied in the trial court, and they will be referred to herein as plaintiff and defendant, as they appeared in the court below.
¶2 The suit is to recover damages for personal injuries sustained by reason of a collision of the defendant's automobile with one driven and occupied by persons not involved in this suit. Plaintiff was a passenger in defendant's automobile at the time of the collision. The cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $7,861, and defendant has appealed.
¶3 It is first urged that:
"The court erred in refusing to declare a mistrial upon disclosure to the jury by plaintiff's witness and her counsel that the defendant was protected by insurance."
¶4 This contention is based upon the following facts and condition of the record: Lizzie Grayson who was also a passenger in the defendant's automobile at the time of the collision, was produced as a witness for the plaintiff. It appears that about the next day after the accident this witness had signed a written statement at the request of defendant's attorneys.
¶5 After the statement had been identified and admitted in evidence and read to the jury, counsel for defendant proceeded:
¶6 No further mention was made of insurance by this witness except the following which occurred upon redirect examination by plaintiff's attorneys:
¶7 Whereupon the defendant moved for a mistrial, which was overruled by the court.
¶8 The defendant asserts that the reference to insurance made by the witness upon cross-examination was not responsive to the question asked, and was unexpected on the part of defendant's attorneys. She asserts, further, that she did not then move for a mistrial, hoping that the significance of the answer had escaped the jury, and not caring thereby to emphasize the remark in the presence of the jury. She asserts, however, that plaintiff's attorneys, on redirect examination, purposely emphasized the reference to insurance as shown by the subsequent questioning hereinabove quoted, and that this was done for the purpose, of prejudicing the jury, and that the record thereby shows that the jury was informed that the defendant carried liability insurance which would protect her in case of an adverse judgment in this cause. The following authorities are cited by defendant. Yoast v. Sims, 122 Okla. 200, 253 P. 504, 56 A. L. R. 1418-25; Wagnon v. Brown, 169 Okla. 292, 36 P.2d 723; Woolworth Co. v. Davis, 41 F.2d 342; Hankins v. Hall, 176 Okla. 79, 54 P.2d 609.
¶9 We have examined the authorities cited and are mindful of the general rule heretofore embraced by this court that information conveyed to a jury, in such cases as this, that a judgment rendered in favor of plaintiff will ultimately be paid by the defendant's insurance carrier instead of the defendant personally, is held to be prejudicial error warranting a reversal of the cause if plaintiff prevails. We observe from these authorities and the texts generally upon the subject that the application of the principle is governed by the facts shown in the individual case. We have observed, also, a number of opinions by this court where it was held the rule was inapplicable. See Aderhold v. Bishop, 94 Okla. 203, 221 P. 752; Letcher v. Skiver, 99 Okla. 269, 226 P. 1029; Tankersley v. Webster, 116 Okla. 208, 243 P. 745; Teeters v. Frost, 145 Okla. 273, 292 P. 356; Lake-view, Inc., v. Davidson, 166 Okla. 171, 26 P.2d 760; Beatrice Creamery Co. v. Goldman, 175 Okla. 300, 52 P.2d 1033; Fike v. Peters, 175 Okla. 334, 52 P.2d 700.
¶10 In the Frost Case, supra, it will be observed that the court concluded that the references therein made were too remote to justify the application of the rule. We have concluded likewise here. It was not entirely unnatural for the Indian woman who was testifying in this case to feel called upon to offer an explanation, or give her reasons for signing the statement about which she was being questioned, and if the answer was at all justified for that reason, it is indeed questionable whether or not the rule should be applied under the decisions first hereinabove cited, which support the rule. Whatever may be the proper application of the rule, we are convinced that the same should not be applied here, for the reason that the reference made to insurance is too remote and not sufficient to advise the jury that the defendant carried insurance which would protect her in case of an adverse judgment in this cause. It fails to advise the nature of the insurance referred to, and could just as easily have referred to some form of insurance other than liability insurance. It is just as easy to assume that it referred to personal accident insurance carried by the defendant, or even by the plaintiff or some other occupant of one of the automobiles. It could as easily have referred to insurance covering damage to one or the other of the automobiles. We think it farfetched and visionary to assume that the members of the jury would thereby be informed that the defendant in this case carried insurance which would protect her in case of a judgment for damages inflicted upon the plaintiff as herein shown. Under all of the facts here, we hold that the court committed no reversible error in refusing to declare a mistrial.
¶11 The defendant next contends:
"The court erred in admitting evidence offered by the plaintiff of the financial worth of the defendant over the defendant's objection."
¶12 We think the trial court did err in admitting in evidence that the defendant lived in a large home and owned four automobiles, but the court instructed the jury to disregard any evidence as to defendant's financial status, and the record fairly indicates that they did so. Although evidence is erroneously admitted, such error does not always require reversal.
¶13 In Lindley v. Kelly, 47 Okla. 328, 147 P. 1015, this court in the fifth paragraph of the syllabus thereof held as follows:
¶14 See, also, the case of Aderhold v. Stewart, 172 Okla. 72, 46 P.2d 340.
¶15 In Yukon Mills & Grain Co. v. Imperial Roller Mills Co., 34 Okla. 817, 127 P. 422, it is held in the third paragraph of the syllabus:
¶16 And the fourth paragraph of the syllabus:
"Before a cause will be reversed on account of the admission of incompetent evidence, it must affirmatively appear that the admission of such evidence resulted prejudicially to the interests of the one making such objection."
¶17 In St. L.-S. F. Ry. Co. v. Routh, 133 Okla. 168, 271 P. 835, this court held in the fifth paragraph of the syllabus thereof:
"Where plaintiff, in an action for damages for personal injuries, is permitted, over the objection of defendant, to introduce evidence showing that plaintiff is married and has a family, a verdict for plaintiff will not be set aside on account thereof, where it clearly appears that the evidence of plaintiff's injuries is such that the verdict is not...
To continue reading
Request your trial
-
Swisher v. Clark
...a miscarriage of justice, and would be harmless. Title 22 O.S. Ann. § 1068 . The defendants were not prejudiced thereby. Fixico v. Harmon, 180 Okla. 412, 70 P.2d 114; Yarbrough v. Bellamy, 197 Okla. 493, 172 P.2d 801. ¶27 Specific performance is a purely equitable remedy. Dobler v. Smith, 1......
-
Baker v. Shaw
...80 P.2d 640; Graves v. Harrington, 177 Okla. 448, 60 P.2d 622; Shell Pet. Corp. v. Perrin, 179 Okla. 142, 64 P.2d 309; Fixico v. Harmon, 180 Okla. 412, 70 P.2d 114; Okla. Union Ry. Co. v. Bartrand, 129 Okla. 263, 264 P. 621; Grosshart v. Shaffer, 52 Okla. 204, 152 P. 441. In Town of Hallet ......
-
Mid-Continent Petroleum Corp. v. Fisher
...that any substantial right of the defendant was prejudiced. Sautbine v. C. I. T. Corp., 172 Okla. 526, 45 P.2d 764; Fixico v. Harmon, 180 Okla. 412, 70 P.2d 114. Vance's testimony was merely cumulative on the question of damages, since four other witnesses for the plaintiff had testified as......
-
M & P Stores, Inc. v. Taylor
...defendant is protected against a judgment by insurance, depends essentially upon the facts and circumstances of each case. Fixico v. Harmon, 180 Okl. 412, 70 P.2d 114; Westgate Oil Co. v. McAbee, 181 Okl. 487, 74 P.2d 1150; Coker v. Moose, 180 Okl. 234, 68 P.2d 504; see also annotation 4 A.......