Garber v. Martin
| Decision Date | 21 March 1972 |
| Citation | 494 P.2d 858,261 Or. 410 |
| Parties | Harold GARBER, Appellant, v. William F. MARTIN and Barbara B. Martin, Respondents. |
| Court | Oregon Supreme Court |
Roger L. Dick, The Dalles, argued the cause for appellant. On the briefs were Dick & Dick, The Dalles.
Walter J. Cosgrave, Portland, argued the cause for respondents. On the brief were Maguire, Kester & Cosgrave, Portland.
The plaintiff recovered a verdict in his personal injury action. The trial court granted defendants' motion for new trial. Plaintiff appeals.
One of the grounds for new trial was the injection of insurance on cross-examination by a witness called by defendants. The trial court, when granting the new trial, stated that when the four grounds urged to be the basis for the motion for new trial were considered together, 'and particularly the injection of insurance into the case, even though involuntarily done, it is my opinion that defendants did not get a fair trial * * *.'
When the fact that the defendant is insured has been unintentionally injected into the case we have held that whether or not to grant a mistrial is within the discretion of the trial court.
Johnson v. Hansen, 237 Or. 1, 6, 389 P.2d 330, 332, 390 P.2d 611 (1964).
Blake v. Roy Webster Orchards, 249 Or. 348, 354--355, 437 P.2d 757, 760 (1968).
The dissenting Justices in DeSpain v. Bohlke, Or., 486 P.2d 545, 549 (1971), would go further:
'The unnecessary injection of insurance, be it intentional or inadvertent, is prejudicial and ground for a mistrial unless the court can point to some special circumstance negating the likelihood of prejudice.' 486 P.2d at 550.
In the instant case it is not necessary to take the step urged by the dissenters. The trial court found the unintentional injection of insurance was prejudicial and deprived the defendants of a fair trial and it, therefore, should have granted a mistrial. Such a finding and ruling were within its discretion.
Affirmed.
HOWELL, J., did not participate in this decision.
As stated by the majority, the trial judge granted defendant's motion for new trial because he was of the opinion that defendants did not get a fair trial because of the 'cumulative effect' of the four grounds urged as a basis for that motion 'and particularly the injection of insurance into the case, even though involuntarily done.' 1
The majority would, for the first time in Oregon, affirm the granting of a new trial in a personal injury case upon the ground that the inadvertent mention of insurance by a witness, although in response to a proper question, is of itself a sufficient ground for the granting of a new trial. The reason given by the majority for reaching such an unprecedented result is that the granting of a new trial in such a case is a matter within the 'largely uncontrolled' discretion of the trial judge, quoting from Blake v. Roy Webster Orchards, 249 Or. 348, 354--355, 437 P.2d 757 (1968). The majority would reach this result despite the fact that defendant's counsel made no objection, motion to strike or motion for mistrial at the time of the mention of insurance by the witness, but waited until the end of his testimony and until the next recess before making a motion for mistrial, which was then denied.
I most respectfully dissent from the opinion by the majority because I believe that Blake is not controlling under the facts of this case and also because I believe that the result of the majority opinion is both unsound and unrealistic and is also contrary to both the clear weight of authority by other courts and the previous practice in Oregon.
1. Any error resulting from the inadvertent mention of insurance was waived by defendant's failure to promptly object and move for a mistrial.
This is an action for personal injuries suffered by the driver of a truck as the result of what was claimed to be a defective steering mechanism. Defendant's expert witness, upon cross-examination by plaintiff's counsel, was asked whether he had seen the 'remaining portion of the steering mechanism.' In answer to that question defendant's witness stated:
No motion was made at that time by defendant's counsel to either strike that answer or to ask that the jury be instructed to disregard it, much less to ask that a mistrial be declared. Instead, defendant's counsel allowed the plaintiff's attorney to complete his cross-examination (extending over nine additional transcript pages) and then proceeded to complete his redirect examination of the same witness. It was only when the court then called its next recess that defendant's counsel, in chambers, made a motion for mistrial upon another ground and, in that connection, urged 'as an additional ground' for that motion that 'a mention of insurance' had been made by his own witness, despite his warning the witness 'about bringing out any mention of insurance.'
Defendant's counsel then conceded that the mention of insurance was not deliberate and that 'It's solely within the discretion of the court and in the light of everything else that happened in the case.' The trial judge, after stating 'I realize that' and agreeing with the statement that the mention of insurance was not deliberate, denied defendant's motion for a mistrial.
According to an annotation in 4 A.L.R.2d 761 (1949), at p. 820:
'The conduct of defendant's counsel may be such as to estop him from successfully making the objection that a reference to insurance is such prejudicial error as to require the declaration of a mistrial.'
Among the cases cited in support of that rule is the case of Hatfield v. Levy Bros., 18 Cal.2d 798, 117 [261 Or. 415] P.2d 841 (1941), in which it was held (at p. 849) that the defendant might not successfully claim prejudice from the inadvertent mention of insurance because no objection was made until after the witness had left the stand and because defendant never at any time made a motion to strike the answer or ask the court to instruct the jury to disregard the reference to insurance. See also other cases to the same effect as cited in 4 A.L.R.2d, Supra, at 820--821.
This court has not previously had occasion to rule upon the question whether failure of counsel to promptly object or to move to strike or to ask the court to instruct the jury to disregard a question or answer in which insurance is mentioned inadvertently, or to promptly move for a mistrial, will bar a defendant from a subsequent motion for mistrial or new trial on that ground.
This court has held in many cases, however, that the failure to object promptly to an improper question waives such an objection and that, in addition, it is necessary to move promptly to strike an improper answer by a witness to a proper question. 2 This court has also held that in such an event, the trial judge should also be requested to instruct the jury to disregard such testimony 3 and that ordinarily the admonition by a trial judge to a jury to disregard improper testimony cures such an error except in extreme circumstances, such as a direct appeal to passion and prejudice (which this was not). 4 In addition, the court has held that a motion for mistrial must be made promptly and that such a motion when made later is ordinarily too late. 5
There are particular reasons why these same rules should be applicable and controlling in cases in which, in response to proper questions, improper answers are given in which mention of insurance is made inadvertently. Indeed, this court has already held that the admonition by a trial judge to a jury to disregard an inadvertent reference by a witness to insurance cures such an error (if any), at least in the ordinary case, such as this. 6
If defendants' counsel in personal injury cases are not required to take such action, and to do so promptly, they will be encouraged, by the making of a tardy and pro forma motion for mistrial in the expectation that it will be denied, to 'gamble' on a favorable verdict and still retain a 'hedge' in the record against an unfavorable verdict, rather than run the risk of having a prompt and vigorous motion for mistrial granted, with the resultant expense and inconvenience of a retrial. 7 A further reason why these same rules should be applied in cases involving the inadvertent mention of insurance is the extremely dubious prejudice of a reference to insurance upon a modern jury in the usual automobile accident cases, as discussed below.
It follows that the trial court did not err in denying defendant's motion for mistrial. It also follows that the trial court would not have erred in denying defendant's subsequent motion for a new trial on that same ground. Such a conclusion does not completely dispose of this case, in which the trial judge granted, instead of denied,...
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