Graham v. Corvallis & Eastern R. Co.

• Decision Date: 14 July 1914
• Citation: 71 Or. 477,142 P. 774
• Parties: GRAHAM v. CORVALLIS & EASTERN R. CO.
• Court: Oregon Supreme Court

142 P. 774

71 Or. 477

GRAHAM v. CORVALLIS & EASTERN R. CO.

Supreme Court of Oregon

July 14, 1914

Department 1.

Appeal from Circuit Court, Lincoln County; J. W. Hamilton, Judge.

Action by Addie Graham against the Corvallis & Eastern Railroad Company. From a judgment for $10,000 for plaintiff, defendant appeals. Reversed and remanded for new trial.

M. V Weatherford, of Albany, Arthur Clarke, of Corvallis (Weatherford & Weatherford, of Albany, and McFadden & Clarke, of Corvallis, on the brief), for appellant. B. F Jones and Albert Abraham, both of Roseburg, for respondent.

RAMSEY J.

The plaintiff commenced this action to recover $25,000 for personal injuries, that she claims to have received while a passenger in one of the defendant's cars. According to her complaint, on the 15th day of November, 1912, she purchased from the defendant, a ticket on the defendant's line, and paid therefor $1.50, and this ticket entitled her to be carried in its cars from Wren to Toledo, in this state. She entered one of the defendant's cars on November 15 1912, to be carried to Toledo. The complaint, after alleging that the defendant is a corporation and a common carrier of passengers, alleges the following:

"That the said defendant, not regarding its duty in that behalf, while the plaintiff was such passenger, and in a passenger coach of the defendant, did on the 15th day of November, 1912, at a point on said railroad, a short distance west of said town of Chitwood, in said Lincoln county, Or by its servants and agents so carelessly, negligently, and unskillfully conduct the running of said cars and railroad, and, by reason of such carelessness and negligence and unskillful running of said cars and train, and by reason of the unsafe, unsound and poor condition of the railroad track of the defendant aforesaid, and by reason of the unballasted condition of said track, and the fact that the rails of said railroad track were too light, old, worn, and the material therein crystallized, hardened, and no longer fit to be used, and by reason of the weak and decayed condition of the ties in said track, and the timbers in the bridge of said railroad, and the unstable manner in which they were fastened, and by reason of the carelessness, negligence, and default of the said defendant, its agents and servants, in so attempting to run and operate said train upon said defective railroad in such manner, as aforesaid, and by reason of the carelessness, negligence, and default of the defendant in not providing a safe track, roadbed, ties, bridge timbers and fastenings, and in permitting the said track, roadbed, ties, timbers, and fastenings to get in the said unsafe condition aforesaid, and in failing to repair the same, and by reason of all of said matters and things combined, one of said rails broke, the track and bridge gave away, and the said car, whereon the plaintiff was riding as such passenger, as aforesaid, together with other cars attached to the same, jumped the track, and thereby caused the plaintiff to be thrown violently down and against the floor, seats, and interior of said car and the furnishings thereof, whereby plaintiff was greatly bruised and injured, and suffered great bodily injury, fright, and nervous shock, and plaintiff's head, neck, body, arms, and legs, spine, brain, and nervous system were bruised, disordered, and injured, and the muscles and ligaments of her arm torn, and plaintiff was caused great physical and mental suffering and nervous shock and her general health affected, and, whereas she was before a strong, healthy, and sound woman, rendering her a permanent invalid and cripple, to her great damage in the sum of $25,000."

The defendant filed an answer, denying most of the allegations of the complaint, and setting up affirmative matters of defense, at considerable length. The plaintiff filed a reply, denying all of the affirmative matter of the answer. The case was tried by a jury, and a verdict and a judgment were rendered in favor of the plaintiff for $10,000. The defendant appeals.

1. The first point made by the defendant refers to certain remarks made by one of the attorneys for the plaintiff, in stating the plaintiff's case to the jury. One of the attorneys for the plaintiff, in making the opening statement to the jury, inter alia, said:

"She [the plaintiff] then proceeded on her way home in King's Valley. I suppose you all know where King's Valley is. They got off at Wren, or some place, but next day, I think, one or two days afterwards, the Southern Pacific Company, or Corvallis & Eastern, a man attends to both of them, and the Southern Pacific Company is the parent corporation of this. I think they ordinarily call them parents. This Corvallis & Eastern is one of the lines of the Southern Pacific System. This suit is against the Corvallis & Eastern because it has a corporate name of its own, and whether or not the Southern Pacific Company, we should have sued them or not, we are not looking for them here. We are simply looking at their child, the Corvallis & Eastern Railroad."

To which statements and remarks concerning the Southern Pacific Company, the defendant, by its counsel, objected, and the court sustained the objection. Counsel for the plaintiff, continuing his statement to the jury, said, also:

"Now Dr. Johnson and Pernot, they run a hospital, and they are the doctors. They are Southern Pacific doctors, and if the Corvallis & Eastern doctors, I believe they are the Corvallis & Eastern's doctors, but they might be the Southern Pacific doctors, but we claim they are the same ones."

Counsel for the defendant again objected to the reference to the Southern Pacific Company, which objection was overruled by the court. Counsel for the defendant excepted to said ruling. Counsel for the defendant contend that these references to the Southern Pacific Company were made for the purpose of causing the jury to believe that the defendant belonged to the Southern Pacific Company, and that the latter company was behind the defendant and backing it. They claim that these references to the Southern Pacific Company were made for the purpose of causing the jury to believe that a company of great wealth was behind the defendant, and thereby increasing the plaintiff's chances of obtaining a verdict, and enhancing the amount of the verdict, in case one should be obtained. There was manifestly some motive for making these references. Otherwise they would not have been made. In the first instance, the court held the references to the Southern Pacific Company improper, but did not instruct the jury to disregard them; but counsel, notwithstanding that the court held said references to be improper, again referred to said company in a manner calculated to create a belief in the minds of the jury that the Southern Pacific Company and the defendant were, in some manner, together in the case. We can see no reasonable excuse for these references to the Southern Pacific Company, unless they were made to influence the jury against the defendant. If the jury believed that the defendant was "a child" of the Southern Pacific Company, and one of the lines of its system, as counsel for the plaintiff stated, when not instructed to disregard said remarks, in finding their verdict, they would be liable to view the case more favorably to the plaintiff than they would if they understood that the defendant did not belong to the Southern Pacific System, and had no powerful backing. It is the common understanding among lawyers and judges that juries are more likely to find a verdict against a wealthy defendant than against one of moderate means. The jury may have formed the impression, from the remarks of counsel, that the Southern Pacific Company would, in some way, reimburse the defendant for what it might have to pay on the verdict, if one should be found. It is impossible to know what effect those remarks may have had. They were clearly wrongful, and attorneys never make such remarks without a motive for doing so.

In Tuohy v. Columbia Steel Co., 61 Or. 531, 122 P. 37, the court says: "It has been frequently held that a willful attempt by plaintiff in a personal injury case to show that the defendant was protected by insurance constitutes reversible error. The ground for this holding is that a knowledge that the defendant has such protection might have a tendency to render jurors careless as to the amount of the verdict."

In Elliott's General Practice, vol. 2, § 698, the author says, inter alia:

"So, it is improper for counsel to refer to facts not pertinent to the issue, but calculated to prejudice the case to the injury of the opposite party."

In 38 Cyc. pp. 1497, 1498, it is said:

"It is highly improper, and ordinarily ground for reversal, for counsel in argument to tell the jury that defendant is insured, or has indemnity against any verdict rendered against him in the case on trial."

See, also, on this point, Zimmerle v. Childers, 136 P. 352, where an analogous question was presented, and decided.

The remarks of the counsel in this case, were liable to cause the jury to believe that, although the Corvallis & Eastern Railroad Company was nominally the defendant, the real party was the "parent" Southern Pacific Company, as the former was stated to be "one of the lines" of the latter company, and the counsel seems to have expressed a doubt as to whether they should not have sued the Southern Pacific Company. These remarks having been seasonably objected to, the trial court should have held them to be improper and have instructed the jury to disregard them entirely, and have required counsel to desist from making such remarks. The court held that some of them were not improper, but failed to instruct the jury to...