Jensen v. Schlenz

• Decision Date: 01 January 1916
• Docket Number: 13041.
• Citation: 154 P. 159,89 Wash. 268
• Parties: JENSEN v. SCHLENZ et al.
• Court: Washington Supreme Court

154 P. 159

89 Wash. 268

JENSEN v. SCHLENZ et al.

No. 13041.

Supreme Court of Washington

January 1, 1916

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by George Jensen against the City of Tacoma and others. From an adverse judgment, defendants F. C. Schlenz and another appeal. Affirmed.

A. F. Williams, of Seattle, for appellants.

P. V Davis, of Seattle, Gordon & Easterday and T. L. Stiles, all of Tacoma, and Frank M. Carnahan, of Tacoma, for respondent.

CHADWICK J.

Respondent fell on a manhole and was injured. The manhole was maintained in the sidewalk for the purpose of putting fuel into the basement of a hotel which was conducted by appellants. It is alleged that the covering on the manhole was negligently maintained. Defendants Huth, the owners of the building, were dismissed out of the case during the progress of the trial. The jury found in favor of the city of Tacoma, and rendered a verdict in favor of respondent Jensen in the sum of $1,500. There was testimony to sustain the finding of the jury that the cover to the manhole was negligently maintained, and a motion for nonsuit was properly overruled.

Upon the examination of one of the jurors and in answer to the question, 'Your business is what?' he answered 'I am with L. N. Hanson Company, liability insurance and surety bonds.' He was then interrogated further:

'Q. Do you carry insurance on the Carlton Hotel? A. No. Q. Do you know Mr. Schlenz? A. That is in a business way? Q. That is you have done business with them? A. I think possibly. Q. Do you know what branch of your line of business which you have done for these different people, any of it indemnity? A. I think that for the Pacific Brewing & Malting Company we might have written some. Q. Any kind with the Schlenzes and Huths? A. Oh, I could not recall. I think possibly it was liability and such as that. Q. Ever hear of this case? A. I don't just recall as I have. I generally keep in touch with all these personal injury cases because that is my line, but I don't just recall the case now. Q. It is a part of your business, regular business to keep in touch with them? A. Yes. Q. And ascertain to what extent if at all your company is interested? A. Yes. Q. You don't recall whether you ever had occasion to look into this or not? A. No. Q. You don't know now whether your company is interested in the result of the suit? A. I don't think so. No. I am pretty sure it is not. Q. It may be and it has escaped your attention? A. I think possibly this would be in our general liability insurance policy. I think another company, that is---- Q. You think you are not interested in that way in this case? A. No. Q. Well, we will pass you.'

Counsel predicates error upon this incident, saying:

'This court has held in many instances that any attempt on the part of counsel to bring before a jury the question of insurance in a case of this character is reversible error.'

We do not understand that the court has ever gone so far. The extent of our holding is that if it be apparent that counsel deliberately sets about, although in an indirect way, to inform the jury that the loss, if any, will fall upon an insurance company instead of the defendant, his conduct will be held prejudicial.

'In cases of this kind if it should appear that the purpose of the examination was to inform the jury that the burden of a judgment, if obtained, would fall upon an insurance company instead of the defendant, we would hold it such misconduct on the part of the attorney as would warrant a reversal.' Hoyt v. Independent Asphalt, etc., Co., 52 Wash. 677, 101 P. 367.

Counsel had a right to inquire into the business of the juror and to know whether he had any business dealings with any of the defendants, although the examination might reveal the ultimate fact that the defendant was insured. If such information comes about naturally and is an incident to a lawful inquiry, there can be no error. If it is injected in a collateral way it is held to be harmful. The gravamen of the offense is not in the disclosure of a collateral fact, but in the manner of its disclosure; that is, the misconduct of counsel. The cases to sustain our holding are collected in Moy Quon v. Furuya, 81 Wash. 526, 143 P. 99.

It is objected that counsel for respondent was guilty of misconduct in that he objected to the further participation in the trial of the attorney for the defendants Huth after they had been dismissed out of the case. A motion for a nonsuit had been made on behalf of the Huths, which was not 'resisted.' There followed a confusion of ideas, and the court finally denied the motion. Counsel for respondent evidently proceeded upon the theory that the Huths were out of the case and other counsel that they were still in. Hence the objection to their further participation. When the objection was made all parties seem to have come to a common understanding and counsel for respondent 'consented' that a judgment of nonsuit be entered. We can find no prejudice in the proceeding.

Nor was it error to dismiss the defendants Huth. The consent that a judgment of nonsuit might be entered was equivalent to a voluntary dismissal. 14 Cyc. 411. Any one or more joint tort-feasors may be dismissed out of a case if the plaintiff consents thereto or takes no exceptions to an order of dismissal. It is not a matter of legal concern to his codefendants. Birkel v. Chandler, 26 Wash. 241, 66 P. 406; Ronald v. Pacific Traction Co., 65 Wash. 433, 118 P. 311; Groot v. Oregon Short Line R. Co., 34 Utah, 152, 96 P. 1019.

Error is predicated upon an instruction in which the court told the jury that there was no evidence to warrant a finding of fault in the construction of the manhole or----

'* * * any danger to pedestrians walking over the same if the covering over the manhole was inserted in the opening and

was maintained by the persons in charge of the Carlton Hotel in the way that it was designed to be maintained, and rubbish or débris were not permitted to lodge or accumulate in the space intended for the covering, and Huth and wife have been dismissed from the action. This leaves for your determination the question, whether or not the defendants City of Tacoma,

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