Matchen v. McGahey

• Citation: 455 P.2d 52,1969 OK 48
• Decision Date: 11 March 1969
• Docket Number: No. 41755,41755
• Parties: Maurine MATCHEN, Plaintiff in Error, v. Violette McGAHEY, Defendant in Error.
• Court: Supreme Court of Oklahoma

Page 52

455 P.2d 52

Maurine MATCHEN, Plaintiff in Error, v. Violette McGAHEY, Defendant in Error.

No. 41755.

Supreme Court of Oklahoma.

March 11, 1969.

Rehearing Denied June 10, 1969.

Syllabus by the Court

1. Statement during closing argument effectively conveying suggestion of liability insurance in negligence action is grounds for granting a new trial or a remittitur.

2. When a litigant himself tenders an issue as to the amount of his income, or disability resulting in a loss of earnings, there is no privilege against the disclosure of his tax returns, and the tax returns of the litigant become subject to the provisions of 12 O.S.Supp. 1965 § 548.

3. Where injury, and treatment subsequent to injury, is of such a character as to require skilled and professional persons to determine the cause of the injury and the casual connection between subsequent treatment and the earlier injury, the question is one of science to be determined by or upon testimony of skilled, professional persons.

Appeal from District Court of Marshall County; Joe Thompson, Judge.

Action by plaintiff passenger against defendant driver for injuries sustained in automobile accident. Defendant appeals from a judgment for plaintiff and the overruling of her motion for new trial. Reversed.

Fischl, Culp & McMillin, Ardmore, for plaintiff in error.

Ed Dudley, Madill, for defendant in error.

McINERNEY, Justice.

This appeal involves a judgment awarding damages for personal injuries sustained by Violette McGahey (plaintiff) in an automobile accident occurring in Cook County, Texas. The automobile was owned and driven by Maureen Matchen (defendant). Plaintiff, defendant and two other ladies, all residents of Oklahoma, were proceeding to their employment at a pants factory in Texas. Defendant and the other two ladies furnished automobiles on a car pool arrangement. Plaintiff paid fifty cents a day to the particular member of the car pool transporting her.

Highway 99, their route of travel, was wet from rain. Near the Gordonville intersection, the automobile hit a road sign. Plaintiff was rendered unconscious, but later went to work where she fainted on the job and was transported to a hospital for treatment.

Plaintiff sought damages for pain and suffering, past and future medical expense, and permanent and partial disability, including as disability a restriction of 'her ability to perform gainful employment.'

Defendant predicates her appeal on (1) failure to declare a mistrial based on prejudicial remarks of plaintiff during the closing argument, (2) failure to require plaintiff to furnish defendant copies of her Federal Income Tax returns, (3) error in submitting to the jury certain medical expenses, (4) permitting an opinion by a nonexpert, (5) error in giving the instruction on the Texas Guest Statute, and (6) in refusing defendant's requested instruction concerning the duty of a passenger to object to negligent operation of vehicle by the driver. Since a new trial is required, we will dispose of all the contentions presented.

The basis for the complaint directed to the closing argument is the following statement of plaintiff to the jury:

'First of all, ladies and gentlemen, this is not a criminal case. You are not concerned with the guilt or innocence of any party to this case. And another thing, don't worry about our collecting a judgment or verdict against Mrs. Machen. That's just something you don't have to worry about.'

Plaintiff asserts this argument was provoked by, and is responsive to, the previous statement of defendant asking the jury to return a 'verdict of not guilty, a verdict of not guilty of negligence for my client.' Defendant moved for a mistrial and the court, after commenting that the motion was timely, overruled the motion and submitted the case to the jury.

Plaintiff misplaces her reliance on the use of the word 'negligence' in defendant's closing argument to justify the suggestion that defendant would not be personally responsible in the collection of a judgment. The pleadings and the instructions are replete with the word 'negligence'. Negligence is the basis of liability. Defendant's argument is responsive to both the pleadings and the instructions. The challenged remark of plaintiff is not responsive to any issue, pleading or argument. Liability in this case was vigorously contested, and the issues to be determined by the jury were close and disputed. The argument by plaintiff that a judgment would be collected from other than the defendant effectively suggested the existence of liability insurance. Indeed, it is difficult to conclude that there is any other purpose intended for the remark.

In J. C. Penney Company v. Barrientez, Okl., 411 P.2d 841, the court held:

'Generally, any suggestion by plaintiff, plaintiff's counsel or any of plaintiff's witnesses that the defendant is covered by liability insurance, whether accomplished inadvertently or intentionally, is improper and prejudicial to defendant.'

Under the circumstances of this case, the rule announced in Penney, supra, is applicable here. See also M & P Stores v. Taylor, Okl., 326 P.2d 804; Redman v. McDaniel, Okl., 333 P.2d 500; Pratt v. Womack, Okl., 359 P.2d 223; and Smith v. Hanewinckel, Okl., 405 P.2d 99. The overruling of the motion for a mistrial was error.

Defendant next contends that the trial court erred in refusing to require plaintiff to furnish defendant with copies of her Federal Income Tax returns. The plaintiff alleged that her injuries permanently and partially disabled her and restricted 'her ability to perform gainful employment.' Her ability to perform gainful employment and to receive income through such employment thus became an issue in litigation.

In other state and federal courts two definite divergent lines in civil litigation have developed. The majority view is expressed in Conner v. Gilmore, 45 Del. 184, 70 A.2d 262; Currier v. Allied New Hampshire Gas Co., 101 N.H. 205, 137 A.2d 405 70 A.L.R.2d 237; Leonard v. Wargon, 55 N.Y.S.2d 626; Davis v. Atlantic Coast Line R. Co., 227 N.C. 561, 42 S.E.2d 905; Mullins v. Baker, 144 W.Va. 92, 107 S.E.2d 57; June v. George C. Peterson Co., 7 Cir., 155 F.2d 963, 967; Connecticut Importing Co. v. Continental Distilling Company, D.C., 1 F.R.D. 190; The Sultana, D.C.N.Y., 77 F.Supp. 287; Karlsson v. Wolfson, D.C.Minn., 18 F.R.D. 474. The minority view is found in Peterson v. Peterson, 70 S.D. 385, 17 N.W.2d 920; Webb v. Standard Oil of California, 49 Cal.2d 509, 319 P.2d 621. Each of these opposing views in turn are subject to certain definite requirements before becoming applicable. The different discovery statutes or lack of discovery statutes are germane to the decisions reached. 70 A.L.R.2d 240.

Oklahoma has not directly passed on the subject. The asserted right, if it exists, is found in 12 O.S.Supp. 1965 § 548. This statute, § 548, relating to discovery and production of documents, basically follows Rule 34 of Title 28, United States Federal Court Rules of Civil Procedure, discovery, and production of documents and things for inspection, copying, or photographing. The scope of Rule 34 is within the limits of Rule 26(b) which applies to any matter not privileged which is relevant to the subject matter involved in the pending action, whether it relates to the claim, or the defense of the examining party, or the claim or defense of any other party.

We considered the discovery procedure relating to the production of income tax returns, prior to the adoption of 12 O.S.Supp.1965 § 548, in Application of Umbach, Okl., 350 P.2d 299. Here the court reasoned that the privilege against public disclosure is a limited privilege and not an absolute privilege. It may be waived by the taxpayer himself. The first question to determine is whether or not the taxpayer has waived the privilege. If this question is answered in the affirmative, then the question of the relevancy of the returns to the issue in the pending litigation is to be determined. Since the witness whose income tax returns were sought to be examined in Umbach, supra, was not a litigant in the pending action, we held that no waiver existed in connection with the returns.

After reviewing the decisions of other jurisdictions, we believe the better reasoned view is stated in Kingsley v. Delaware, Lackawanna & Western R. Co., D.C.S.D.N.Y., 20 F.R.D. 156. Plaintiff sought recovery in a negligence action and included past and future loss of earnings as an element of his damages. The court said:

'The purpose of the statute (privilege) is to prevent the disclosure of confidential information to those who do not have a legitimate interest in it. But once a person has made the amount of his income an issue in litigation it becomes a legitimate subject of inquiry and he can no longer claim that the information contained in his return is confidential.' (Parenthesis supplied)

Plaintiff tendered the issue as to the amount of her income, or loss of income, by alleging a restriction on her gainful employment due to the injuries caused by defendant's negligence. Her income thus becomes a legitimate subject of inquiry under the Oklahoma discovery procedure, 12 O.S.Supp. 1965 § 548, subject to the conditions contained therein.

We adopt the majority view, and hold that this evidentiary rule...