Martin v. Dretsch
| Decision Date | 10 April 1963 |
| Parties | M. K. MARTIN, Respondent, v. Gust DRETSCH, Appellant. |
| Court | Oregon Supreme Court |
Frederic P. Roehr, Portland, argued the cause for appellant. With him on the briefs were Vergeer & Samuels and Charles S. Crookham, Portland.
George L. Hibbard, Oregon City, argued the cause for respondent. With him on the brief were Hibbard, Jacobs, Caldwell & Kincart, Oregon City.
Before McALLISTER, C. J., and ROSSMAN, SLOAN, GOODWIN and DENECKE, JJ.
The defendant appeals from a judgment for the plaintiff in an action for damages arising out of an automobile collision. The principal issue is whether the trial court abused its discretion in not granting one of several motions by the defendant for an order of mistrial.
The plaintiff's attorney in his opening statement improperly injected into the case the plaintiff's experiences in World War II. The defendant's counsel thereupon objected to conduct which he characterized as 'waving the flag in front of the jury.' The defense also moved, in chambers, for a mistrial. The motion was overruled. The trial court admonished counsel to remain within the pleadings. The plaintiff's attorney made no further overt attempt to get irrelevant matter before the jury. He did, however, permit his client to follow the lead that had been given him in the opening statement. The defendant again made timely objection.
Counsel's tactics were an apparent attempt, under the color of a supposed aggravation of a pre-existing condition, to show that the plaintiff's pre-existing condition was the result of misfortunes suffered by him during military service between 1942 and 1945. The opening statement had referred to the plaintiff's capture by the Japanese, his subsequent hardships in prison, and the like. Later, when a relatively innocuous reference was made by the plaintiff himself to 'the docks in Manila', the court promptly told the jury to disregard the irrelevancy. The question now is whether any misconduct chargeable to the plaintiff was bad enough to require another trial. (We note, for the record, that the attorneys who argued this appeal are not those who tried the case.)
The granting of a motion for a mistrial is discretionary. The trial judge is in a better position than is the appellate court to understand the circumstances and the effect of the alleged impropriety in a given case. This court will not...
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...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 ......
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