Klaus v. Hillberry

• Decision Date: 07 June 1971
• Docket Number: No. 11948,11948
• Citation: 485 P.2d 54,157 Mont. 277
• Parties: Adolph KLAUS and Blanche Klaus, Plaintiffs and Respondents, v. James HILLBERRY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 54

485 P.2d 54

157 Mont. 277

Adolph KLAUS and Blanche Klaus, Plaintiffs and Respondents, v. James HILLBERRY, Defendant and Appellant.

No. 11948.

Supreme Court of Montana.

Submitted April 15, 1971.

Decided May 14, 1971.

Rehearing Denied June 7, 1971.

Robert L. Johnson, argued, Lewistown, for appellant.

Berger, Anderson & Sinclair, Billings, Richard W. Anderson, argued, Billings, for respondents.

JOHN C. HARRISON, Justice.

This is an appeal from a verdict and judgment of the thirteenth judicial district, Yellowstone County, Hon. Charles B. Sande, judge presiding with a jury. The verdict and judgment was in favor of plaintiffs, Adolph Klaus and Blanche Klaus, and against defendant, James Hillberry. Defendant appeals from the judgment and a denial of a motion for new trial.

The cause involves a personal injury action resulting from an automobile collission. The facts concerning the accident and the procedural matters will be set forth in considerable detail herein due to the first two issues raised by defendant on appeal.

The accident occurred on July 13, 1968, on Interstate Highway No. 90, west of the Laurel, Montana interchange. Defendant, a resident of Cody, Wyoming, was driving westerly from Billings and somehow missed the Interstate turnoff to Cody, which is located at the Laurel interchange. Noting that he had missed the Cody turnoff, defendant proceeded west observing a sign that indicated the next exit off the Interstate was located at Park City, some seven miles distant.

In this area Interstate Highway No. 90 is a four lane highway with the westbound and the eastbound lanes divided by a median strip about forty feet wide. The highway is a controlled access highway with no lawful turnoffs or crossovers between the eastbound and westbound lanes except at designated points.

While proceeding west toward the next designated turnoff at Park City, defendant noticed 'a graveled fill in between the east and westbound lanes'. At the time he made this observation he was traveling in the right hand or outside westbound lane. He testified that upon observing the graveled fill he began to angle from the outside lane to the inside lane toward the median strip, with the intent of crossing the median strip at the graveled fill in order to head back toward the Cody turnoff at the Laurel interchange.

At the very time he began to angle from the outside lane to the inside lane and the median strip, he was being passed on the inside lane by the plaintiffs' vehicle. The testimony in the record is in dispute as to whether defendant used his turn signals or whether his turn was sudden and unannounced. However, there is no question but that defendant's action caused the collision and defendant was cited for an illegal left turn by the highway patrolman who investigated the accident.

Plaintiff Adolph Klaus suffered neck and back injuries for which the jury awarded him $11,811; his wife, Blanche, was awarded $25.

With these facts before us, we proceed to certain procedural matters which arose before and during trial and are now issues on appeal.

This action was instituted with the filing of a complaint on December 2, 1968. On February 11, 1969, defendant filed his answer, generally denying negligence on his part and alleging contributory negligence on the part of plaintiffs. At the same time defendant filed a counterclaim asking judgment against plaintiffs for property damage in the amount of $639.99 and for the additional sum of $250 for the loss of use of his vehicle while it was being repaired. On January 15, 1970, the court ordered a pretrial conference for January 29, 1970. Plaintiffs filed their pretrial memorandum on January 23, 1970. Pertinent to the issues on this appeal is the following excerpt from that memorandum:

'As the file reflects, defendant has interposed a counterclaim in the sum of $889.99 by reason of property damage. This counterclaim is interposed in the name of defendant personally, and is not being prosecuted by any insurance company. Plaintiffs are now tendering an interrogatory to defendant, requesting information as to whether the amount of this property damage has been paid by defendant's own insurance carrier. If such be the case, it is the plaintiffs' contention that defendant is not the real party in interest in the counterclaim. It must be prosecuted by the insurance company, or not at all.'

Plaintiffs then filed and served the interrogatory referred to, inquiring in part:

'Please state whether you have been reimbursed for all or any part of the losses referred to in your counterclaim by any insurance company, and if so, the name of the insurance company making such reimbursement, or paying such damage, and state also the date of such reimbursement or payments, and the amount thereof.'

On February 3, 1970, defendant filed his pretrial memorandum, resisting plaintiffs' motion to join the insurance company as a real party in interest because 'defendant's damage was only partially paid by his insurer.' Defendant did not formally answer the interrogatory concerning the subrogation rights and insurance coverage, but at pretrial conference he admitted that all but the $50 deductible had been paid by his insurer, Wyoming Farm Bureau Insurance Company. At the same pretrial conference defendant's counsel produced an assignment form, wherein the defendant had assigned to his insurance company all claims he might have insofar as they were reimbursed by the company. This assignment became a part of the court file.

The trial court, after considering the memoranda of both parties on the issue of the real party in interest, entered the following order dated February 26, 1970:

'1. That defendant join the Wyoming Farm Bureau Mutual Insurance Company, Inc., as a counterclaimant and real party in interest to the counterclaim on file herein, according to the interest of said Wyoming Farm Bureau Mutual Insurance Company, as the same is disclosed by Exhibit 'A', attached to plaintiffs' memorandum on real party in interest issues; or,

'2. Dismiss the counterclaim in its entirety.

'Unless defendant makes such joinder as above ordered by March 4, 1970, said counterclaim will at that time be dismissed.'

On March 4, 1970, defendant filed a pleading entitled 'Notice of Joinder of Cross-Complainant' in which he stated:

'Please take notice that Wyoming Farm Bureau Mutual Insurance Company, Inc., pursuant to order of the court dated February 26, 1970, made and entered herein, does by these presents elect to be joined in this cause as a cross-complainant against Adolph Klaus * * *.'

Trial was set for March 30, 1970 and just prior to that date defendant made a motion in limine designed to preclude the mention of the insurance carrier at the trial. Due to the fact that Judge Sande was unavailable for trial at the date set, the motion was not heard. However, on the morning of the rescheduled day set for trial, May 18, 1970, defendant renewed the motion and moved to dismiss the counterclaim. The trial judge granted both motions and the parties went directly into the courtroom where Judge Sande allegedly announced to the jury panel:

'This is Cause No. 52858, Adolph Klaus and Blanche Klaus, plaintiffs v. James Hillberry and Wyoming Farm Bureau Mutual Insurance Company, Inc., defendants.'

No court reporter was present at the time of this alleged statement.

Appellant presents four issues on appeal:

1. Was the mention of the name of the insurance company as a party defendant error?

2. Did the court err in requiring the joinder of the insurance company as a party to the action?

3. Did the court err in disallowing evidence of prior inconsistent statements to impeach Adolph Klaus' testimony concerning the location of the collision?

4. Was it error to allow Dr. Swanson, attending physician for Mr. Klaus, to testify from reports given him by a Dr. Meyer, a neurologist?

Because the first two issues for review relate to the interjection of the insurance question, we will combine the issues for discussion.

Appellant relies on two recent decisions of this Court in his contention that the interjection of the word 'insurance' calls for a reversal. Those cases are: D'Hoodge v. McCann, 151 Mont. 353, 443 P.2d 747; State ex rel. Hereim v. District Court, 154 Mont. 112, 460 P.2d 755. While these cases hold that the fact insurance is involved in the case such fact may not be conveyed to the jury in a tort action. These cases are not factually applicable in the instant case.

Here, there is a question as to whether the words 'Insurance Company' were mentioned by Judge Sande when he announced to the jury panel the name of the case to be tried. While no court reporter was present when Judge Sande made the alleged remark, we do have a record made later which indicates what was probably said:

'MR. JOHNSON: Very reluctantly, Your Honor, I think I must ask the Court for a mistrial at this time because of the mention of Wyoming Farm Bureau being a party to this suit in light of the pre-trial rulings and motions made and given. Wyoming Farm Bureau was dismissed as a party defendant or cross-complainant, and I believe that harm was done to the defendant here that is reversible at this time.

'THE COURT: Your comment, Mr. Anderson?

'MR. ANDERSON: For the record I believe that it should show the nature and contention of the comment by the Court and when it was made. It was made immediately after the Jury was called and before voir dire examination began, and the Court simply stated in a soft tone of voice, that this was the time set...