Mary Ryan v. Reuben S. Barrett

• Decision Date: 28 October 1933
• Citation: 162 A. 793,105 Vt. 21
• Parties: MARY RYAN v. REUBEN S. BARRETT
• Court: Vermont Supreme Court

162 A. 793

105 Vt. 21

MARY RYAN v. REUBEN S. BARRETT

Supreme Court of Vermont

October 28, 1933

May Term, 1932.

Transfer of Case To Supreme Court for Determination of Exception before Final Judgment---G. L. 2262---Trial---Prejudicial Error by Injecting into Case That Defense Is by Insurance Company---Mistrial---Discretion of Court---Presumption in Supreme Court as to Finding To Support Ruling Below---Abuse of Discretion.

1. In ACTION OF TORT for negligence. Plea, general issue. Trial by jury in Rutland city court, Harold I. O'Brien, Municipal Judge, presiding. Upon defendant's motion, mistrial was ordered and jury discharged. The plaintiff excepted. The opinion states the case.

Affirmed, and remanded for trial on the merits.

Novak & Bloomer for the plaintiff.

James P. Leamy and Vernon J. Loveland for the defendant.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

GRAHAM

This is an action of tort arising out of an automobile collision at Pittsford Mills, this State, in June 1930. A trial by jury was begun before the Rutland city court. During the direct examination of the plaintiff, the following questions were asked and answers given: "Q. What did you do immediately after the accident or collision? A. I got out of the car and talked to Mr. Barrett. Q. What did you say to him? A. I asked him how he happened to run into me. Q. What did he say to that? A. He said he was sorry but he didn't see me coming because he was dodging a car from Proctor, but to get my car fixed and his Insurance Company would pay the damage as he was to blame."

The defendant immediately moved for a mistrial on the ground that it was prejudicial error for the plaintiff to bring into the case the fact that the defendant was insured. The motion was granted, and the plaintiff was allowed an exception to the granting of the motion both as a matter of law and as a matter of discretion. The bill of exceptions states "Exceptions allowed, * * * execution stayed and cause passed to the Supreme Court."

We will assume, nothing appearing to the contrary, that the trial court acted under G. L. 2262, and in its discretion passed the exception to this Court for determination before final judgment. In that view of the matter, the question is before us for decision. Hannah v. Hannah, 96 Vt 469, 472, 120 A. 886.

The rule is clear and generally understood that it constitutes reversible error to inject into a case the fact that an insurance company is defending the suit. Ronan v J. G. Turnbull Co., 99 Vt. 280, 290, 131 A. 788, and cases cited; MacDonald v. Orton, 99 Vt. 425, 431, 134 A. 599; Landry v. Hubert, 100 Vt. 268, 277, 137 A. 97. While this rule has its exceptions and limitations (Raymond's Admx. v. Rut. Ry. Light & Pr. Co., 90 Vt. 373, 377, 378, 98 A. 909; Spinney's Admx. v. O. V. Hooker & Son, 92 Vt. 146, 150, 102 A. 53; Cady, Admr. v. Lang, 95 Vt. 287, 289, 115 A. 140; McAndrews v. Leonard, 99 Vt. 512, 518, 134 A. 710; Note 56 A.L.R. 1418, 1432; Note 74 A.L.R. 849, 854), yet the exceptions and limitations are never to be used as an artifice to bring before the jury the poisonous fact of insurance. See Brooke v. Croson, 61 App. D.C. 159, 58 F.2d 885. In such circumstances the good faith of the party and his counsel is the guiding principle. Raymond's Admx. v. Rut. Ry. Light & Pr. Co., supra; Spinney's Admx. v. O. V. Hooker & Son, supra. The motion was addressed to the discretion of the trial court, and, except for abuse, its discretion is not reviewable. The motion...