King v. Starr

• Decision Date: 20 August 1953
• Docket Number: No. 32475,32475
• Citation: 43 Wn.2d 115,260 P.2d 351
• Parties: KING, v. STARR et al.
• Court: Washington Supreme Court

Page 115

43 Wn.2d 115

260 P.2d 351

KING, v. STARR et al.

No. 32475.

Supreme Court of Washington, Department 2.

Aug. 20, 1953.

Rehearing Denied Oct. 19, 1953.

Gavin, Robinson & Kendrick, Yakima, Edgar H. Canfield, Goldendale, for appellant.

Zola O. Brooks, Goldendale, Cheney & Hutcheson, Yakima, for respondents.

DONWORTH, Justice.

This action was brought by Ruby King, as guardian ad litem, on bahalf of Carol King Gaddis and her husband, Robert Gaddis, both minors, against Ralph Starr and A. F. Beddoe as copartners, and their respective wives, to recover damages for personal injuries and expenses sustained by Carol King Gaddis while working for defendants. The trial resulted in a verdict for defendants. A motion for new trial was made and denied. This appeal was taken from the judgment of dismissal entered on the verdict.

This appeal is before us on a short record in accordance with Rule 34(3) of Rules on Appeal, 34A Wash.2d 36. There are six points set forth in appellant's statement of points relied upon on the appeal. We find it necessary to discuss only the first and second points which relate to the refusal of the trial court to (1) grant a motion for a mistrial and (2) grant a motion for new trial, both motions being based upon the statement of respondents' counsel to the jury in his opening statement relative to his clients' lack of liability insurance coverage.

On July 6, 1950, Carol King, who subsequently married Robert Gaddis, was employed by respondents to work on their farm during the haying season. While working on a hay baling machine she was somehow precipitated into the moving parts of the machinery and suffered very severe injuries. The complaint which instituted this action alleged that these injuries were proximately caused by the defendants' negligence.

On March 18, 1952, this case came on for trial. Before the jury was impaneled counsel for both parties appeared before the trial judge in his chambers for the purpose of disposing of certain preliminary matters. Appellant's attorneys moved to have Ruby King appointed guardian ad litem for Robert Gaddis and for permission to have the jury view the hay baling machine. These motions were granted. Respondents' counsel moved to add a fourth affirmative defense to their answer and this motion was also granted.

The following then occurred:

'Mr. Gavin: One other item. There is evidently going to be an issue, and I think it is proper to suggest it to Your Honor at this time. We will take the position that it will be improper for the defense to show anything of the defendants' financial condition.

'The Court: That is not an element.

'Mr. Gavin: Or particularly whether they are covered by insurance or not.

'The Court: Neither of those have any place in the thing.

'Mr. Gavin: If it was made an issue we would be compelled to move for a mistrial and we don't want to do it.

'The Court: Their financial condition is no part of this case. That has no bearing here.

'Mr. Hutcheson: We don't think there is any motion of that kind made at this time.

'The Court: There is no harm done talking about it, but we don't want it in the case at all.'

Immediately thereafter a jury was selected and the trial commenced. After appellant's counsel made his opening statement, counsel for respondents then made his opening statement. Near the end of that statement he said:

'The testimony will show that the defendants here--they are suing among other things for medical expenses. The testimony will show that the defendants have paid almost all the plaintiff's hospital and medical expenses that were incurred in Goldendale. The defendants have no insurance here----' (Italics ours.)

He was then interrupted by appellant's counsel who objected to the statement. The court twice stated that the remark was objectionable and instructed the jury to disregard the statement of counsel. Respondents' counsel then continued his statement and concluded without any further reference to the matter of insurance.

As soon as the opening statements were completed counsel again retired to the judge's chambers where appellant's counsel moved for a mistrial on the ground that respondents' counsel had mentioned to the jury that respondents were not covered by insurance in this case and that under the circumstances the remark was improper and prejudicial and could not be cured by an instruction to disregard it. The judge heard arguments from both sides and then ruled that, while the remark was improper and 'absolutely uncalled for,' it was not prejudicial since he had promptly admonished the jury to disregard the statement and in his opinion they would do so. He then denied the motion for a mistrial and appellant assigns this ruling as error.

This incident was also one of the grounds stated in appellant's motion for new trial which was denied. This ruling is likewise assigned as error.

The rule is well established in this jurisdiction that in personal injury cases the fact that the defendant carries liability insurance is entirely immaterial, and the deliberate or wanton injection of this matter into the case by plaintiff is ground for reversal. Iverson v. McDonnell, 36 Wash. 73, 78 P. 202; Lowsit v. Seattle Lumber Co., 38 Wash. 290, 80 P. 431; Stratton v. C. H. Nichols Lumber Co., 39 Wash. 323, 81 P. 831; Westby v. Washington Brick, Lime & Mfg. Co., 40 Wash. 289, 82 P. 271; Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 135 P. 821, 50 L.R.A.,N.S., 59; Shay v. Horr, 78 Wash. 667, 139 P. 604; Lucchesi v. Reynolds, 125 Wash. 352, 216 P. 12.

Where the fact that the defendant is covered by insurance is brought before the jury inadvertently and it appears that neither the attorney nor the witness connected with the case deliberately, willfully or collusively injected such fact into the case in the presence of the jury, a mistrial will not be granted. Armstrong v. Yakima Hotel Co., 75 Wash. 477, 135 P. 233; Moy Quon v. Furuya Co., 81 Wash. 526, 143 P. 99; Jensen v. Schlenz, 89 Wash. 268, 154 P. 159; Heath v. Stephens, 144 Wash. 440, 258 P. 321; Child v. Hill, 149 Wash. 468, 271 P. 266; Hughes v. Wallace, 6 Wash.2d 396, 107 P.2d 910; Williams v. Hofer, 30 Wash.2d 253, 191 P.2d 306, and cases cited.

'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.' Jensen v. Schlenz, supra [89 Wash. 268, 154 P. 160]; Williams v. Hofer, supra.

The question whether a defendant can deliberately inject into a personal injury case the fact that he has no insurance, has never before been directly presented to this court.

In other jurisdictions the rule is that where, as here, nothing has been done or said from which the jury might infer that defendant is protected by liability insurance it is improper for defendant to show that he does not have insurance protection. Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, 21 N.W.2d 841; Brown v. Murphy Transfer & Storage Co., 190 Minn. 81, 251 N.W. 5; Piechuck v. Magusiak, 82 N.H. 429, 135 A. 534; Bacon v. Wass, 200 Okl. 581, 198 P.2d 423. Indeed some courts have even excluded evidence that the defendant is not insured although there is already evidence in the case from which it may be inferred that he is insured. Avent a. Tucker, 188 Miss. 207, 194 So. 596; Davis v. Underdahl, 140 Or. 242, 13 P.2d 362; Wilbur v. Tourangeau, 116 Vt. 199, 71 A.2d 565. The reason evidence that the defendant is not covered by insurance is excluded by the courts is that it is immaterial and does not pertain to any issues in the cases.

We believe that these decisions from other jurisdictions adequately dispose of respondents' contentions, as set forth in their brief in this court, to the effect that it was entirely proper for their counsel to inject the fact that they had no liability insurance coverage in this case.

The only decision of this court cited by respondents to show that the remark was proper is Colvin v. Auto Interurban Co., 132 Wash. 591, 232 P. 365, 367, wherein this court said:

'It may be true that the insurance company was liable in this instance for only $5,000; if so, the appellant had a perfect right to show that fact.'

Respondents argue that 'since that was proper, certainly it was proper here for defendants' counsel to casually inform the jury in the opening statement that they had no insurance.'

A careful reading of that case does not support this argument. In that case plaintiff had stopped his truck partly upon a highway to examine his load which he thought was slipping and to check on an engine knock. His taillight was burning. He was standing alongside the hood when defendant's stage ran into the rear of his truck pushing it over upon him and injuring him seriously. Plaintiff sued to recover for his personal injuries and the jury returned a verdict in his favor. The defendant appealed. In discussing the first assignment of error this court said:

'When appellant's attorney was cross-examining one of the respondent's witnesses, who had previously testified that he had distinctly seen the taillight on the truck, he was asked whether he had not told a man by the name of Gordon that he did not see the taillight. On redirect examination the attorney for the respondent asked the witness whom Gordon said he represented, and the witness anwered that he said he represented an insurance company. The appellant's first assignment of error is based on this incident, claiming that, under Jensen v. Schlenz, 89 Wash. 268, 154 P. 159, and Lucchesi v. Reynolds, 125...