Letcher v. Skiver

• Decision Date: 04 March 1924
• Docket Number: 13800.
• Parties: LETCHER v. SKIVER.
• Court: Oklahoma Supreme Court

226 P. 1029

99 Okla. 269, 1924 OK 268

LETCHER v. SKIVER.

No. 13800.

Supreme Court of Oklahoma

March 4, 1924

Rehearing Denied June 10, 1924.

Syllabus by the Court.

Where in response to a proper question, a portion of the witness' answer is incompetent and irrelevant, and such incompetent and irrelevant testimony is stricken by the court and the jury instructed to disregard the same, and it is not apparent from an examination of the whole record that the complaining party was prejudiced by such answer, no reversible error has been committed by the court's refusal to dismiss the jury and declare a mistrial.

Where a person is struck by an automobile and forcibly knocked to the pavement and is found to have sustained lacerations contusions, and abrasions visible to the unprofessional, as well as the professional, person, held, such are not of such character as to require skilled and professional persons to determine the cause thereof, and the question of the injuries and the cause thereof is not one of science, and need not necessarily be proven by the testimony of skilled and professional persons.

Where a cause has been fairly submitted to the jury under proper instructions, this court will not examine conflicting testimony to determine the weight and sufficiency thereof.

Commissioners' Opinion, Division No. 3.

Appeal from District Court, Tulsa County; Albert C. Hunt, Judge.

Action by Mrs. S.E. Skiver against J. C. Letcher. From a judgment for plaintiff, defendant appeals. Affirmed.

Underwood & Rodolf and Biddison & Campbell, all of Tulsa, for plaintiff in error.

Carter Smith, of Tulsa, for defendant in error.

RUTH C.

This was an action originally filed in the district court of Tulsa county, Okl., by the defendant in error, plaintiff below wherein she sought to recover damages for injuries alleged to have been suffered and sustained by reason of being struck by the automobile of the plaintiff in error, defendant below, and, for convenience, the parties will be designated as they appeared in the trial court.

Plaintiff's petition, briefly stated, alleges that while she was crossing a certain public street in Tulsa, at the regular crossing for pedestrians, which street was paved with cement, concrete, and asphalt, and when about forty feet from the curb, and in the roadway, the defendant propelled his automobile along said street at an unlawful rate of speed, and failed to give the signals required by the city ordinances, and said auto struck the plaintiff, knocking her down, and thereby "the muscles, nerves, ligaments, and tendons of her back, hip, legs, knees, were torn, bruised, and lacerated, and she suffered permanent and incurable injuries." The petition also sets forth the ordinances of the city of Tulsa, regulating traffic, such as sounding signals when approaching street crossings, and rounding corners; the rate of speed of automobiles at such points, etc.; and prays damages in the sum of $10,125.

Defendant answered by way of general denial and contributory negligence. The cause was tried to a jury, and a verdict for the plaintiff was returned, fixing the damages at $2,325. After a motion for a new trial was filed and overruled, this cause was brought here for review.

Defendant sets forth five assignments of error and presents thereunder two propositions, which will be considered in their order.

First. "When a plaintiff, in a damage suit for personal injuries, injects into the evidence before a jury, either personally or through council, a suggestion that the defendant is protected by liability or indemnity insurance, and that in reality an insurance company is the real party defendant, such action constituted reversible error in the event a judgment is rendered for plaintiff, and a motion by defendant to discharge and withdraw the jury at such time should be sustained."

The testimony objected to was given by the plaintiff in relating the conversation she had with the defendant when he visited plaintiff at the hospital on the day following the accident, and consisted of the following questions and answers:

"Q. Did Mr. Letcher come to see you the next day at the hospital? A. Yes, sir; Sunday afternoon. Yes, sir; he did. He and his wife both.

Q. Did you have a conversation there with him with reference to him running into you, with you all? A. No, sir. Well, he talked about it; I didn't feel very much like talking, but he talked about it.

Q. What did he say? A. He said he was willing to do what he could for us to help us. You know our case there, and that--said he was--that he had big insurance on his car and that they would do right by me."

The defendant interposed timely objection to the testimony and moved the court to withdraw it from the record and dismiss the jury and declare this, "No trial." The court struck answer and instructed the jury not to consider any portion of the conversation with reference to insurance as the same was incompetent, but refused to dismiss the jury, and the defendant noted his exception. Thereafter the plaintiff testified as follows:

"Q. Don't--tell what he said with reference to the accident. A. Well, he said he thought--he said he went to turn the corner. He said there was so--a car across the street blowing their horn so much that he didn't believe it was necessary for him to blow his horn. I know I said to him, 'I didn't hear any horn,' and he said he didn't blow his horn because the car across the street was making so much noise. He says, making noise enough for all of them.

Q. Is that all he said? A. Well, I just don't remember now. He said that by the way his car registered he was running about 15 miles an hour.

Q. Did he say anything about seeing you? A. No, he said he didn't see us. He didn't know he had hit anything until he felt the jar of his car."

Defendant has favored us with a very exhaustive brief in support of proposition No. 1, and we have examined carefully the cases and agree with the findings therein in the main as applied to the facts in those cases, in most of which it appears counsel for plaintiff deliberately, designedly, and persistently propounded questions with the fixed design of eliciting from the witnesses the fact that the defendants carried indemnity insurance and mentioned this fact in argument, and in many instances counsel was not admonished by the court to refrain from mentioning the fact that the defendant carried indemnity insurance; in some instances the court failed to strike the evidence or instruct the jury not to consider the same. All cases cited by defendant appear to have turned upon the fact that in the opinion of the court the mention of the insurance being carried by defendants was designedly injected into the case for the purpose of prejudicing the jury, and the prejudice was manifest in the excessive amounts returned in their verdicts.

The authorities were not entirely harmonious on the question, and counsel should exercise extreme caution in approaching the subject when examining witnesses and admonish witnesses beforehand to refrain from any mention of the fact of the defendant carrying insurance, as in many instances a violation of the rule will cause a reversal of judgment. We wish to say, however, a careful examination of this voluminous record fails to disclose any attempt on part of counsel for plaintiff to inject any testimony touching the insurance feature, and throughout the trial and argument he employed no tactics calling for an admonition or rebuke from the court. The trial court, in passing upon the motion for a new trial, stated:

"If I thought the question of insurance, being accidentally brought into the case as it was, and it seems to run through most of these authorities there that one way or another it was designedly done by counsel, which, of course, was reprehensible, in this case I do not think that it was designedly done, either on the part of counsel or on the part of witness herself. I think she was an ignorant woman; she didn't have any idea, I don't think, of trying to inject that feature in this case for the sole purpose of getting it before the jury. * * * I think there is sufficient evidence to support the verdict of the jury in this case, and where the court feels that way I don't believe there is sufficient ground to grant a new trial."

If the injection of the fact of the defendant's carrying insurance had been designedly done or persisted in, the opinions cited by defendant might be followed with safety; if the verdict was excessive and in such amount as to be out of all proportion to the injury suffered, the presumption of prejudice...