Johnson v. Hansen

• Citation: 237 Or. 1,389 P.2d 330
• Parties: Margaret Gail JOHNSON, by and through Mary Jane Swanson, her guardian ad litem, Respondent, v. C. J. HANSEN and Ruth Hansen, dba C. J. Hansen Company, and Robert Hansen, Appellants.
• Decision Date: 13 February 1964
• Court: Supreme Court of Oregon

Page 330

389 P.2d 330

237 Or. 1

Margaret Gail JOHNSON, by and through Mary Jane Swanson, her guardian ad litem, Respondent, v. C. J. HANSEN and Ruth Hansen, dba C. J. Hansen Company, and Robert Hansen, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted before Department 2 Sept. 10, 1963.

Reargued Oct. 30, 1963.

Decided Feb. 13, 1964.

Bruce Williams, Salem, argued and reargued the cause for appellants. With him on the briefs were Otto R. Skopil, Jr., Alfred J. Laue, and J. William Stortz, Salem.

M. M. Orona, Lebanon, argued and reargued the cause for respondent. On the brief were Morley, Thomas & Orona, Lebanon.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

GOODWIN, Justice.

This is an action for damages for injuries sustained in an automobile collision. The jury found for the plaintiff and the defendants appeal from the judgment.

The accident occurred on a two-lane highway. Plaintiff was proceeding south in her own lane of travel. Defendant Robert Hansen, following a school bus, was proceeding north in his lane of travel. The school bus was equipped with flashing stop signal lights, front and rear. These lights flashed on and continued operating for approximately 400 feet before the bus stopped to take on children. Defendant Hansen, in seeking to avoid collision with the rear of the bus, applied his brakes. This act caused the defendants' truck to spin or skid into the plaintiff's lane of traffic. Plaintiff's automobile struck defendants' truck.

The first assignment of error asserts that the trial court abused its discretion in refusing to grant a mistrial during the examination of a prospective juror.

Plaintiff's counsel questioned the first juror on voir dire as follows:

'Q Now, do you believe that you have a financial interest in this lawsuit in any way, shape or form, by reason of any effect it might have upon you in your own private cost of living?

(No response.)

'Q In other words, you don't think, for example, that if you gave this woman a large sum of money, you don't feel that directly or indirectly that sum of money might make your cost of living higher in any way whatever?'

Defendants immediately moved for a mistrial on the ground that plaintiff's counsel had intentionally injected the matter of insurance. The motion was denied, apparently because the trial judge thought the question had been asked innocently.

In the ordinary case, the presence or absence of insurance is not only irrelevant, but the unnecessary injection of the subject into the trial is prejudicial. See Cameron v. Columbia Bldrs., Inc. et al., 212 Or. 388, 393, 320 P.2d 251 (1958). Since the profession knows that questions about insurance normally have no place in the voir dire examination of jurors, or in the questioning of witnesses, the problem presented by the mention of insurance comes before this court only in those cases where counsel thought he had some more or less colorable excuse for conduct that otherwise would have been improper and very likely would have furnished ground for a mistrial. The clear cases are not appealed. It is in the questionable cases, then, that this court has repeated its long-standing rule that the decision of the trial court to grant or deny a mistrial will not be disturbed unless there was a manifest abuse of discretion. The rule is the same whether the irrelevancy concerns insurance or other extraneous matter likely to prejudice the offended party. See Martin v. Dretsch, 76 Or.Adv. 571, 380 P.2d 788 (1963).

In the case at bar there was no preliminary showing of any fact that might have made relevant an inquiry concerning bias arising out of the relationship of verdicts and insurance premiums. Where a line of questioning obviously is going to open up prejudicial speculation, e. g., of a racial, religious, political or other emotionally charged nature, the exploration of which will manifestly incite similar speculation upon the part of listening jurors, counsel must be prepared to show the need which might make such an inquiry relevant, or run the risk of an immediate mistrial. Insurance matters should be handled with the same safeguards. In the case before us counsel did not advise the court of the existence of recent institutional advertising, or of other current propaganda calculated to produce bias upon the part of jurors in the local court. Thus there was no occasion to open up the matter of insurance, whether innocently or with scienter. We hold that the inquiry was improper. Its impropriety, furthermore, was not a matter to be determined in the exercise of judicial discretion. Impropriety is established as a matter of law when the exploration of potentially prejudicial matter before the jury is undertaken without any legitimate reason being offered therefor. Where good cause does exist the safer practice would be to resolve the problem out of the presence of the jury rather than to indulge in experiments to test the temper of the trial court.

The next question is whether the motion for a mistrial should have been granted. Many times in the trial of a lawsuit counsel will say things which ought not to have been said. It does not necessarily follow that every such blunder must result in a mistrial. It is here that the proper play of judicial discretion is brought to bear upon the question. The court must choose in each instance a remedy that is appropriate. The trial court must see that both parties have a fair trial. If, in the case at bar, the trial court's ruling was arbitrary, i. e., denied the defendants a fair trial, then it should be reversed. If not, it should stand.

We believe that the increment of prejudice in this case was very slight. The improper questions did not obviously carry an insurance label. Jurors sophisticated enough to read insurance into the case were no doubt already aware of its existence in the vast majority of automobiles cases. The trial judge was in a good position to sense the subjective elements that made up the atmosphere of that particular jury trial. The burden is upon the complaining party to show some real probability that his right to a fair trial was impaired. No such showing has been made in this case. We are satisfied that the trial court's ruling was within the permissible area. Judicial discretion in such a situation properly balances whatever prejudice might have occurred against all the other relevant factors present in a particular case. The judge must weight against an inference that prejudice actually resulted any countering influences that arise from his own special knowledge of the conditions in his courtroom. The record discloses no reason to believe that the judge failed to exercise his discretion judiciously in this case. A mistrial could have been granted, but its denial was not an abuse of discretion.

A second ground for a mistrial is based upon an objection during plaintiff's closing argument to the jury. The challenged statement was as follows:

'You all know, as a practical matter, that we cannot avoid the consequences of our acts. And if our acts should be neglectful, it doesn't change it by saying we are sorry. How often are we sorry? How many times have you, as monthers--Mr. Rivenes perhaps is a father, and I think we've got one who may be too young--but how many times in raising a family * * *'

It is improper to address a juror by name. See Henderson v. Union Pac. R. R. Co., 189 Or. 145, 219 P.2d 170 (1950). But again, this is a matter of professional ethics. See Rule 18, Oregon State Bar Rules of Professional Conduct. The prejudicial effect, if any, of improper argument is in the domain of the trial court's discretion. A ruling on a motion for a mistrial will not be disturbed unless there is a palpable abuse of discretion. The primary office of the mistrial is to prevent a miscarriage of justice, not to punish pettifogging. We find no abuse of discretion in this assignment.

It is finally urged that a mistrial should have been granted on the ground that plaintiff unduly exhibited her distress by crying and cluthcing her father or some other person in the presence of the jury. As pointed out in Hays v. Herman, 213 Or. 140, 322 P.2d 119, 69 A.L.R.2d 947 (1958), whether a party's emotional outbursts in the courtroom afford the basis for a mistrial will depend upon the facts of the particular case. In that case it was noted that the common pattern running through most of the cases 'is to sustain the action of the trial court, because of its superior opportunity to determine whether the weeping, or other display, was prejudicial in a given case.' 213 Or. at 145, 322 P.2d at 121. Cf. Ferguson v. Moore, 98 Tenn. 342, 351, 39 S.W. 341 (1896), considering tears shed by counsel. In the case at bar, the plaintiff had become mentally incompetent as the result of her injuries, and her conduct in the courtroom was a symptom of her difficulty. There is no suggestion that any improper attempt was made to exploit her distress. We find nothing in the record to cause us to substitute our judgment for that of the trial court concerning the effect of plaintiff's conduct upon the outcome of the case at bar.

If, in the judgment of the trial court, the cumulative effect of counsel's conduct or his client's conduct in the particulars noted was likely to be prejudicial to the defendants, it would have been proper at any point for the trial court to terminate the proceedings. It likewise would have been proper for the trial court to grant a new trial if, in its opinion, prejudice had been injected. The court also could have taken whatever disciplinary action it considered reasonable and necessary to prevent further misconduct by counsel, if, indeed, there was misconduct. However, even though it would have been perfectly proper to grant a mistrial, it does not follow that refusing to do so was an abuse of discretion. Judicial discretion, in its very nature, admits of...