Hill v. Jackson

• Decision Date: 04 May 1925
• Docket Number: No. 15344.,15344.
• Parties: HILL v. JACKSON.
• Court: Missouri Court of Appeals

272 S.W. 105

HILL v. JACKSON.

No. 15344.

Kansas City Court of Appeals. Missouri.

May 4, 1925.

Appeal from Circuit Court, Vernon County; Berry G. Thurman, Judge.

"Not to be officially published."

Action by Nora Hill against C. M. Jackson. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See, also, 265 S. W. 859.

Ewing & Ewing, of Nevada, Mo., and Haff, Meservey, Michaels, Blackmar & Newkirk, of Kansas City, for appellant.

A. E. Elliott, and W. H. Hallett, both of Nevada, Mo., for respondent.

BLAND, J.

This is a malpractice suit. Plaintiff recovered a verdict and judgment in the sum of $1,525, and defendant has appealed. The case was here before. (See Hill v. Jackson, 265 S. W. 859, where the general facts are stated; any additional facts that are material will be stated herein.)

In the opinion written in the case when it was here before, it was stated, at loc. cit. 861, 862:

"* * * At another trial plaintiff should refrain from getting before the jury the fact that defendant carries liability insurance. The evidence shows that it was not only defendant's duty to report to the insurance company in case he has injured a patient, but also, where he is threatened with a lawsuit, whether or not he actually injures the patient. Defendant's evidence tends to show that on account of a threatened lawsuit he made a report of the case to the insurance company. The fact that he made the report under such circumstances would not tend to show that he injured plaintiff at the time he extracted her lower teeth, unless, of course, there is evidence that there was no lawsuit threatened at the time of his report."

When we said this, we had in mind the fact that defendant would testify at another trial, as he did at the first, that he did not make the report prior to the time he was threatened with a lawsuit, and consequently we said, in effect, that plaintiff should not get before the jury the fact that defendant carried liability insurance by conducting a similar cross-examination of defendant at the next trial, but, of course, that, if plaintiff had other testimony that a report was made before defendant was threatened with a lawsuit, it would be proper to so show. It is now a matter of common knowledge that liability insurance policies require that a report be made by the policy holder in order to hold the insurance company for any injury that the former had inflicted upon another. Of course, as a matter of common sense, the insurance company must be notified. It is held the provision in the policy requiring notification is of the essence of the contract, and that a breach of such a provision by the assured will prevent a recovery on the policy. Box Co. v. Ins. Co., 170 Mo. App. 361, 156 S. W. 740. The courts have repeatedly inveighed against the conduct of a plaintiff in unnecessarily getting before the jury the fact that there is liability insurance. Gore v. Brockman, 138 Mo. App. 231, 119 S. W. 1082; Trent v. Printing Co., 141 Mo. App. 437, 126 S. W. 238; Bright v. Sammons (Mo. App.) 214, S. W. 425, 427; Boten v. Ice Co., 180 Mo. App. 66, 166 S. W. 883.

Of course, it is competent to show that there is liability insurance in the case where to do so tends to prove some material issue properly in the case, for under such circumtances the mere fact that it is not admissible to prove another matter does not render it incompetent. Boten v. Ice Co., 180 Mo. App. 96, 111, 166 S. W. 883; Garvey v. Ladd (Mo. App.) 266 S. W. 727. If defendant reported to a liability insurance company, either before or after the time he was threatened with suit, that he had dislocated plaintiff's jaw, then testimony of such report would be competent as tending to show that he actually disclocated plaintiff's jaw as he denied that he dislocated it. And, of course, as stated in the former opinion, if defendant, in view of the fact that he denies injuring plaintiff, made any kind of a report to the insurance company prior to being threatened with suit, such a fact would be competent as bearing on the issue as to whether he did injure her. But, ordinarily, fair dealing would require that the question first be asked of defendant outside of the presence of the jury. If defendant can be asked before the jury whether or not he has made a report to an insurance company concerning a disputed matter without first ascertaining that he has, then all the efforts of the courts in laying down rules endeavoring to provide for a fair trial to defendants with liability insurance will be nullified, for, as we have already stated, these policies provide for notification, and of course, in all cases where there is any actual liability on the part of the insurance company, such notice has been given.

At the second trial, which resulted in this appeal, the plaintiff, on cross-examination of defendant, asked in the presence of the jury:

"Q. Tell the jury whether or not it is not a fact, that before you were threatened with any suit, you reported to your insurance company, reporting—"

Objection was made, and the court said:

"Sustained, as to any insurance. Objection overruled. If he reported before the time— he says he was threatened with a suit."

Exception was taken to the ruling of the court, and defendant asked that the jury be discharged. Then the following occurred:

"Q. I will ask you if, before you were ever threatened with a suit, or sued, if you didn't make a report to the insurance company that you had injured this woman?"

Defendant again objected and excepted.

"Court: The court is admitting this testimony for the purpose of notice—cross-examination—as showing that the witness did know that this woman was injured."

"A. No, sir; I did not."

We are at a loss to understand how it could be said that these questions were propounded in good faith, in view of what was said in the opinion in the first appeal. Counsel knew, at the time the questions were asked, that the answer of the witness would be in the negative, and the questions could have been propounded for no other reason than to get before the jury the question of liability insurance. As bearing on the fairness of the matter, it will be noted that counsel first referred to the matter of "your" insurance company and to "the" insurance company, thus emphasizing the fact that defendant was insured. Plaintiff put on the stand no witness to testify that prior to the time defendant was threatened with suit he made any report to any insurance company.

It seems that plaintiff was unduly persistent in her effort to get before the jury the matter of insurance, and took long chances in the face of the warning of this court. On cross-examination of defendant's witness, Dr. Twyman, the following occurred:

The doctor was asked if he knew defendant before the witness came from Kansas City to testify in the case. He testified that he did not know him, and had never talked to him, and had made no arrangement with him about coming down; that all he knew was that he received a subpœna and came in response to that; that when his deposition was taken Mr. Michaels called him.

"Q. Mr. Michaels, a Kansas City lawyer? A. Yes, sir.

"Q. He represented the insurance company?

"Mr. Ewing: We object to that and ask that counsel, ask counsel—

"Mr. Hallet: I have got a right to know who he represents; he wants to examine this plaintiff.

"The Court: I didn't hear the question.

"Mr. Hallet: I asked him who he represented —Mr. Michaels."

Thereupon objection was made, and defendant asked that the jury be discharged. The court overruled the objection, and refused the request, and defendant excepted.

"Witness: May I answer that question about the insurance company? May I—

"Court: No, no.

"Mr. Hallet: Q. Who do you expect to pay you? A. I have already been paid. Q. Who Paid you? A. Mr. Eager presented a subpoena from this court, and mileage and witness fees of $15. * * * Q. Who is Mr. Eager: A. Mr. Eager...