Groff v. State Indus. Acc. Commission

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before PERRY; FORT
• Citation: Groff v. State Indus. Acc. Commission, 426 P.2d 738, 246 Or. 557 (Or. 1967)
• Decision Date: 19 April 1967
• Parties: Zola GROFF, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Appellant.

Page 738

426 P.2d 738

246 Or. 557

Zola GROFF, Respondent, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted April 6, 1967.

Decided April 19, 1967.

Donald J. Howe, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Atty. Gen., and Wallace Carpenter, Asst. Atty. Gen., Salem.

Phil H. Ringle, Jr., Oregon City, argued the cause for respondent. With him on the brief were Misko, Njust & Ringle, Oregon City.

Before PERRY, C.J., and SLOAN, GOODWIN, LUSK, and FORT, JJ.

FORT, Justice pro tem.

This case is brought by the plaintiff for alleged aggravation of an injury to her back and legs for which she had previously received a final award of '* * * 20% Permanent partial disability * * * on account of her unscheduled injuries.' The defendant denied the claimed aggravation. The case was duly tried and submitted to a jury which returned into a court a verdict for the defendant Commission.

Thereafter the plaintiff filed a motion for a new trial on the ground of 'Misconduct of the jury or prevailing party * * *' under ORS 17.610(2). The court allowed the motion and the defendant has appealed. from that order. In order to determine the correctness of the ruling it is necessary to set forth portions of the evidence sequentially. The problem arises out of the calling and examination of a witness. Miss Kissling, the witness in question, was called by the defendant during its case in chief.

During the examination of the plaintiff during her case in chief, she was asked several questions, both on cross examination and on redirect examination, concerning her acquaintance with Miss Kissling, all without any objection whatever. The record in this connection first shows the following questions on cross examination by defendant's attorney and her answers:

'Q Do you know Virginia Kisling, a case-worker?

'A I do know her.

'Q And she has come and talked to you, has she?

'A Yes.

'Q Was the subject of your conversation your ability to take care of the child?

'A No.

'Q You never talked about that?

'A No.

'Q Did you ever talk to her about your physical complaints?

'A No.

'Q This you are certain of?

'A Yes.'

Next on redirect examination by her own attorney she testified:

'Q Now, with regard to this Miss Kisling that you have been asked about, what is your connection with her or her connection with you?

'A She used to be the kid's--my boy's case-worker in Welfare.

'Q Is it his child that you care for in the home?

'A Yes.

'Q She has visited you or the child or both of you or--

'A Well, she more or less visited the child's parents, because they was there at the time when she was there.

'Q When was the last contact you have had with Miss Kisling to your best recollection?

'A I just really couldn't say; it's been quite a while.

'Q More than a year or less than--

'A Yes; right at a year anyway, if not more.

'Q A year or more?

'A Yes.

'Q How many times has she been to your home with regards to your grandchild?

'A Well, she's never come to the home to see her.

'Q Never came to your home to see her?

'A Never came there to see the child.

'Q Where is it?

'A She's come to see the parents; they have made arrangements to come up there to see them instead of going to the mother's parents to see --

'Q Where did your association come in--Did you go someplace to see Miss Kisling?

'A No. Miss Kisling would always come to our home, because my son would come there, make arrangements for her to come to our place to see her.

'Q They just all met at your home?

'A Yes.

'Q How many times do you think altogether you saw Miss Kisling?

'A Oh, maybe five, six, or maybe more, I just wouldn't swear to it for sure.

'Q Did that start shortly after the three-year-old child was born?

'A Yes.

'Q She hasn't been there for a year or more?

'A No. * * *' During defendant's case in chief it called as a witness in its behalf the aforementioned Miss Kisling, now because of recent marriage, named Virginia Janssen. The record, after identifying the name and address of the witness, shows the following:

'Q What is your occupation?

'A Welfare worker.

'Q Can you tell me whether or not you have seen and talked to the plaintiff in this case, Mrs. Zola Groff?

'A Your Honor, if it appears to the Court to be applicable, I must claim the privilege of communication described in Section 411.320, Oregon Revised Statute. The law deals with the confidentiality of * * *

'THE COURT: How did they get this information? If it is confidential, how did they get it?

'THE WITNESS: The * * *

'THE COURT: If you know. If you don't know, say so.

'THE WITNESS: I talked with one of the members of the State Industrial Accident * * *

SU 'THE COURT: Why did you do that? If it's confidential, why do you come into the court and tell the Court it is confidential when you have given it to somebody else? You come in and parade this matter, make it seem like it is serious, to be confidential, but you have given it to somebody else. They already have the information. Is that the way you proceed in your department?

'Go ahead.

'MR. HOWE: Your Honor * * *

'MR. RINGLE: Well, Your Honor, I raise an objection on this thing, and I have a matter for the Court.

'THE COURT: You may take the jury out. * * *'

Thereafter out of the presence of the jury and, so far as relevant to the problem presented, the following took place:

'THE COURT: * * * Now, what information have you given them?

'THE WITNESS: * * * They asked me about whether Mrs. Groff could work.

'THE WITNESS: I said, well, I didn't know. I didn't know whether she could work or not.

'THE WITNESS: I said she probably could work, Because when we were considering placing a small child in her home, I asked her if she could care for this child, if she felt she was physically able.' (Emphasis added.)

Plaintiff then objected on the ground it was a privileged communication. The court, after stating:

'I don't know anything in the statute that makes it privileged communication.'

later ruled:

'I am going to keep this information out.'

Plaintiff then moved for a mistrial. The court ruled:

'Well I am not going to grant a mistrial. I think this has done them more harm than good. I will deny your motion for a mistrial.'

No error has been assigned as a result of this ruling.

The jury was then brought back, and the case proceeded. No further questions were asked of the witness, and she was excused. The case was shortly thereafter submitted to the jury, which returned into court a verdict in favor of the defendant Commission.

Following entry of judgment thereon plaintiff filed her motion her a new trial upon the grounds of misconduct of the prevailing party.

In ruling on the motion for a new trial the court stated:

'This matter is before the Court upon plaintiff's motion for new trial based upon the ground of misconduct of the prevailing party. During the trial of the cause the defendant, State Industrial Accident Commission, attempted to introduce into evidence records of the Public Welfare Commission which are specially declared to be privileged communications and are not admissible in evidence under ORS 411.320. This is not the first time that the Commission has attempted to introduce such evidence in this department of the Circuit Court. The attempt to introduce this evidence in the manner and form indicated by the affidavit attached to the motion for new trial was in the opinion of the Court extremely prejudicial to the rights of the plaintiff. This Court will not allow its processes to be used to further such illicit practices. The conduct of the defendant in attempting to introduce the evidence mentioned was in the opinion of the Court offensive to the very vitals of the integrity of the judicial process, and to the very purity of the fountainhead of justice. The motion for new trial will therefore be allowed. Counsel for the plaintiff may prepare the necessary order.'

The transcript reveals no attempt here 'to introduce into evidence records of the Public Welfare Commission.' No such exhibits were marked, identified or referred to in the evidence. The affidavit of plaintiff's counsel accompanying the motion for a new trial states only:

'* * * that said misconduct alleged is that the defendant by and through their attorney called as a witness one Virginia K. Janssen, a Public Welfare Worker knowing full well that said witness could not testify pursuant to ORS 411.320; * * *.'

ORS 411.320 provides:

'For the protection of applicants for and recipients of public assistance, the State Public Welfare Department and the county public welfare departments shall not disclose or use the contents of any records, files, papers or communications for purposes other than those directly connected with the administration of the public assistance laws of Oregon, and these records, files, papers and communications are considered confidential subject to the rules and regulations of the State Public Welfare Commission, except as otherwise provided in ORS 411.325 to 411.335. In any judicial proceedings, except proceedings directly connected with the administration of public assistance laws, Their contents are considered privileged communication.' (Emphasis added.)

We have held that the privilege conferred thereby is not an absolute one, regardless of who may claim it. ¹ Reese in The Oregon Lawyer's Trial Book, Evidentiary Privilege in Oregon, ch. 3, § 3.47 (1967), referring to ORS 411.320 states:

'Despite the provisions of the statute, when the fundamental rights of a person are in jeopardy, parts of welfare records may, in the discretion of the court, be used. * * *' (Citations omitted.)

Litigation is deeply involved in the...