Iverson v. McDonnell

• Decision Date: 14 October 1904
• Citation: 36 Wash. 73,78 P. 202
• Parties: IVERSON v. McDONNELL.
• Court: Washington Supreme Court

78 P. 202

36 Wash. 73

IVERSON v. McDONNELL.

Supreme Court of Washington

October 14, 1904

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by George Iverson, by Henry Iverson, his guardian ad litem against John W. McDonnell. Judgment for plaintiff. Defendant appeals. Reversed.

Piles Donworth & Howe, for appellant.

W Sinks Ferguson, for respondent.

DUNBAR, J.

Respondent sued appellant for $20,000 damages, claiming that he had lost three fingers of his right hand by reason of appellant's negligence in not furnishing respondent with suitable machinery to work with in his shingle mill, which he was then operating. Judgment was recovered for $2,000. This appeal is from such judgment.

Several errors are alleged, the first being that the superior court erred in allowing counsel for respondent to get before the jury the fact that appellant carried employers' liability insurance. Other errors assigned are upon the introduction of testimony, and instructions given and refused by the court and the refusal of the court to grant a nonsuit. There seems to us to be no merit in the assignments in relation to the admission or rejection of testimony or the giving or refusing to give instructions. Without specifically reviewing the instructions, it seems to us that they explicitly and clearly state the law pertinent to the case. It is true that the court instructed the jury as follows: 'If you find from the evidence that the vice principal promised plaintiff to put the machinery and appliances in good shape, and that plaintiff relied upon said promise, and was lulled into a feeling of security by reason of such promise, and was thereby induced to continue at such work; and if he was injured by reason of defendant's failure to perform such promise plaintiff may recover for such injury, provided you believe that he was in the exercise of reasonable care to prevent such injury at the time of its occurrence.' And it is also true that under the pleadings no issue of this fact is tendered. But the record shows that the issue was tendered in the testimony, without objection, and that testimony on this proposition was offered by both the appellant and respondent, and, such being the case, the court was justified in considering the pleadings amended to embrace the issue of fact contested.

The first error assigned is, however, we are forced to conclude well taken. Upon the cross-examination of the defendant, McDonnell, the following occurred: 'Q. (By Mr. Ferguson, counsel for respondent): Mr. McDonnell, you were the owner and had possession and ran the shingle mill in Ballard, where George was working at the time of the injury? A. I am the owner of the mill, yes. Q. And in case a judgment is rendered against you in this case, you will be the one who would have to pay it, will you not? Mr. Howe (counsel for appellant): I object. The Court: Objection overruled. Exception noted for the defendant. A. I suppose so. I don't know. Q. You don't know? A. I presume so. Q. Now, I will ask you if it is not a fact that you carry insurance on your men? Certain insurance company will have to pay at least a part of that judgment? A. I carry insurance--accident insurance. Q. Well, answer the question. A. I carry insurance--accident insurance. Q. And the company will have to pay at least a part of the judgment, you answer? A. I do not know whether the company will pay it or not. Q. Who pays the law firm of Piles, Donworth & Howe, you or the insurance company? Mr. Howe: I object, as incompetent. Mr. Ferguson: The question is asked for the purpose of affecting the credibility of the witness. I wish to know what his interests are in this case. and it has been decided by our Supreme Court that it is competent. The Court: Objection sustained. Exception noted for the plaintiff.' It is a fundamental principle of law, too well established to require the citation of authority, that testimony should not be introduced in a lawsuit which is not pertinent to the issues involved; and it could make no difference, so far as the merits of this case are concerned, whether the judgment which the respondent hoped to obtain should be paid by the appellant or by an insurance company. The pertinent questions, under the issues, for the jury to determine, were whether or not the appellant had been guilty of negligence which was the proximate cause of the respondent's injury, and whether or not the respondent had been guilty of contributory negligence. Any testimony tending to throw light upon these two propositions was pertinent and competent. Any other testimony would have a tendency to either confuse or inflame the minds of the jurors. In Manigold v. Black River Traction Co. (Sup.) 80 N.Y.S. 861--an action for injuries to a passenger--after an objection had been sustained to a question asked defendant's witness on cross-examination as to whom a doctor, who accompanied the witnesses on a visit to plaintiff, represented, plaintiff's counsel asked witness whether such doctor did not go to settle with plaintiff, and whether he was not representing an insurance company back of defendant, to which defendant's counsel at once objected, and which was not allowed to be answered. Held, that the asking of such question constituted reversible error, where it did not affirmatively appear that it did not affect the verdict, though the...