E. L. Jones Const. Co. v. Noland, No. 9676

• Court: Supreme Court of Arizona
• Writing for the Court: McFARLAND; LOCKWOOD
• Citation: 466 P.2d 740,105 Ariz. 446
• Parties: E. L. JONES CONSTRUCTION CO., an Arizona corporation, Appellant, v. Harold NOLAND, Appellee. Harold NOLAND, Cross-Appellant, v. GENERAL ELECTRIC COMPANY, a New York corporation, Cross-Appellee.
• Docket Number: No. 9676
• Decision Date: 19 March 1970

Page 740

466 P.2d 740 105 Ariz. 446 E. L. JONES CONSTRUCTION CO., an Arizona corporation, Appellant,
v.
Harold NOLAND, Appellee.
Harold NOLAND, Cross-Appellant,
v.
GENERAL ELECTRIC COMPANY, a New York corporation, Cross-Appellee. No. 9676. Supreme Court of Arizona, In Banc. March 19, 1970.

[105 Ariz. 447]

Page 741

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Ralph E. Hunsaker, Phoenix, for appellant.

Moore, Romley, Kaplan, Robbins & Green, by Phillip A. Robbins and Craig R. Kepner, Phoenix, for cross-appellee.

Pain & Julian, by Fred J. Pain, Jr., Phoenix, for appellee and cross-appellant.

McFARLAND, Justice.

This is an appeal by E. L. Jones Construction Co., hereinafter referred to as Jones Construction, from a judgment for damages in the sum of.$23,500 entered by the Maricopa County Superior Court in favor of the appellee, Harold Noland (referred to as Noland or plaintiff), who is also a cross-appellant against General Electric Company, cross-appellee, hereinafter referred to as G. E., Noland having sued both Jones Construction and G. E. for damages. The Superior Court having directed a verdict in favor of G. E., Noland appeals from this judgment.

Noland instituted this action to recover damages for personal injuries sustained as [105 Ariz. 448]

Page 742

a result of a fall on the premises of defendant G. E. Jones Construction was performing work at a G. E. plant in Maricopa County, Arizona. G. E. had employed Jones Construction to construct a consolidated storeroom in its plant. Vern Workings was the supervisor for Jones Construction. The work included the construction of a second floor which was completed at the time of the injury in question. The remaining work included installation of a dumbwaiter between the first and second floors of the building. The second floor was about the size of a football field--70 feet wide and 270 feet long, and was some eighteen feet above the first floor.

Noland was a painter of some thirty years experience, employed at the time of the accident by Kenneth William Lunsford (Bill), a painting and decorating company, a subcontractor of Jones Construction. Noland's employer was engaged in the remodeling work being performed upon the premises owned by G. E. During the course of the remodeling a hole had been left in a newly-constructed floor to accommodate a proposed dumbwaiter. It measured slightly more than 34 1/2 inches by 46 inches, and was protected by a 1 1/8-inch-thick piece of plywood four feet square, which was estimated to weigh some fifty-two pounds. After cutting the hole Mr. Workings covered it with the plywood which he nailed securely to the floor. Later, he removed the board in order to put 9 9-inch tile around the hole. The tiling was completed on the afternoon of January 3, 1966. Workings then laid the plywood board loose over the hole without securing it. According to testimony, Workings saw about six persons identified as G. E. employees engaged in work around the board. They were moving stock with relatively heavy equipment. Two of them stood on the board, and Workings told them 'not to do that, there is a hole underneath.'

There were no signs on the board to indicate that there was a hole underneath it. Mr. Workings left the building between 4:00 p.m. and 4:30 p.m. He testified that the board was in position at the time he left. He testified that protecting the hole was the responsibility of Jones Construction. Noland arrived at the G. E. plant about 3:30 p.m., January 3, reported to the guard office, and, going first to the paint shop outside the plant, he entered the G. E. plant about 4:00 p.m. He walked up the steps to the second floor to see about painting the ducts hanging from the ceiling. From the top of the steps he walked about ten feet looking at the ducts, then turned and stepped on the loose board. The board slipped, and he went down through the hole in the floor. He had last worked at the G. E. plant December 21, 1965, and did not know the hole existed, or see it, nor did he knew the plywood covered a hole in the floor. He saw the plywood board, but testified he saw no writing on the board. It looked like a plain plywood board there on the floor.

The first question presented by Jones Construction was whether the mentioning of an insurance company by a witness was prejudicial. The statement which it contends was prejudicial was relayed by Bill Lunsford, a defense witness on cross-examination by counsel for Noland. During the cross-examination the following testimony was given:

'Q I am going to hand you what is marked Plaintiff's Exhibit Number 28 for identification. Do you recognize what that is?

'A Yes.

'Q Mr. Lunsford, that is a copy that was produced by the Jones Company on order of the court, supposedly a statement you made.

'A Right.

'Q To them, is that right?

'A True.

'MR. HUNSAKER: I object on the grounds that he didn't ever make a statement to us to all. He produced it for us but he didn't make it for us.

'THE WITNESS: No, well--

[105 Ariz. 449]

Page 743

'Q BY MR. PAIN: Is that a statement prepared by you?

'A It's a statement prepared by me--

'Q Did you give that--

'A--not at the request of the insurance company, this type of thing.

'Q Just answer the question. Did you give this statement to the Jones people?

'A I gave the statement to the Jones people, right.'

This Court has held that in negligence cases the plaintiff must take affirmative precaution in introducing testimony to see that liability insurance carried by defendant is not mentioned. Waid v. Bergschneider, 94 Ariz. 21, 381 P.2d 568; Muehlebach v. Mercer Mortuary and Chapel, Inc., 93 Ariz. 60, 378 P.2d 741; Consolidated Motors, Inc. v. Ketcham, 49 Ariz. 295, 65 P.2d 246; Myers v. , rollette, 6 Ariz.App. 43, 429 P.2d 677. In Muehlebach v. Mercer Mortuary and Chapel, supra, we discussed and summarized the reason for the rule preventing any evidence implicating or suggesting that defendant has liability insurance, in which we said:

'The general rule in this state has been that, with certain exceptions, any evidence, implication or suggestion that the defendant has liability insurance requires a mistrial or a new trial. See, e.g., Blue Bar Taxicab & Transfer Co. v. Hudspeth, 25 Ariz. 287, 216 P. 246. This has been held to be so even though the disclosure that the defendant has liability insurance is inadvertent. Counsel for plaintiff has been put under the affirmative duty of preventing such disclosure. Consolidated Motors, Inc. v. Ketcham, 49 Ariz. 295, 66 P.2d 246. The reason for the rule has been the assumption that if the jury knows that the defendant has insurance, they will assume that the defendant will not have to pay the judgment personally, and that the jury will award a larger verdict. Consequently, they will ignore the issues of liability and merely decide how much the insurance company should pay. In former days, this reasoning may have been valid. But more recently, courts have questioned whether the mere mentioning of insurance still has this prejudicial effect.

'The California Supreme Court refused to apply the rule in a later case, Little v. Superior Court of Orange County, 55 Cal.2d 642, 645, 12 Cal.Rptr. 481, 483, 361 P.2d 13, 15 where plaintiff's counsel, on redirect examination asked His own witness, a doctor, if there were any changes between the time that a report had been written and a later time. In his answer, the doctor referred to the 'initial insurance report.' The court said:

"Although the courts have condemned the action of an attorney who intentionally brings the fact of insurance before a jury, the condemnation does not extend to cases where the information is disclosed incidentally during an attempt to prove other facts or where the record does not show that the particular answer was sought or anticipated.'

'At the very least, this case stands for the proposition that the mere mention of defendants' liability insurance is not prejudicial.

'Now, these judicial reminders to lawyers and trial judges about what really goes on in the world do not, of course, make the issue of liability insurance any more Relevant in the run-of-the-mine automobile accident case. Such a case must not be tried on the basis of whether and how much liability insurance the defendant has. Usually an objection to a question as to the existence of liability insurance should be sustained. But it should be sustained on the basis of relevancy, Not prejudice. Most of the time the existence of insurance just has nothing to do with the case. What we are reminded of is that the prejudicial content of a reference to liability insurance[105 Ariz. 450]

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is largely a thing of the past. And it has, in part, been made a thing of the past by the expenditure of vast sums of money by insurance companies to educate prospective jurors of the claimed relation between large verdicts and insurance rates.

'There will be, of course, situations where the issue of insurance is injected into a case for a prejudicial purpose or where its discussion is of such a nature as to be prejudicial. In such a situation, a trial judge must grant a mistrial or a new trial. But he must not allow the bare mention of the word 'insurance' to call forth the conditioned response--'mistrial.' He must truly use his discretion.'

Even in an earlier case, Dunipace v. Martin, 73 Ariz. 415, 242 P.2d 543, we held:

'The matter of calling to the jury's attention that defendant may carry insurance covering him for liability for his negligence is not new to this court. See: Blue Bar Taxi Co. v. Hudspeth, 25 Ariz. 287, 216 P. 246; Butane Corp. v. Kirby, 66 Ariz. 272, 184 P.2d 325; Consolidated Motors v. Ketcham, 49 Ariz. 295, 66 P.2d 246; Fike v. Grout, 39 Ariz. 549, 8 P.2d 242; and Arizona Cotton Oil Co. v. Thompson, 30 Ariz. 204, 245 P. 673. In those cases it was held the admission of such evidence before a jury was reversible error. The exception of course is, where the...