McCann v. Twitchell

• Decision Date: 24 November 1917
• Citation: 116 Me. 490,102 A. 740
• Parties: McCANN v. TWITCHELL.
• Court: Maine Supreme Court

102 A. 740

116 Me. 490

McCANN v. TWITCHELL.

Supreme Judicial Court of Maine.

Nov. 24, 1917.

Exceptions from and on motion from Supreme Judicial Court, Cumberland County.

Action by Carl P. McCann against Herbert F. Twitched. Verdict for plaintiff, and defendant excepts and moves for a new trial. Exception and motion overruled.

The bill of exceptions, omitting the caption, was as follows:

This was an action on the case to recover damages for alleged negligence in setting and treatment of left arm of plaintiff.

Plaintiff was allowed to testify on rebuttal that in course of a conversation between plaintiff, defendant, and others, the defendant stated "that I [plaintiff] could not do any harm, that he was protected by a liability insurance." This was seasonably objected to. Before opening the arguments, the presiding justice ordered said testimony stricken out and instructed the jury to disregard it.

A transcript of the reporter's notes is attached to the next page of this bill of exceptions, and shows the testimony objected to with the necessary context for full understanding of same, and also the remarks of the presiding justice.

Extract from the testimony given by Carl F. McCann, the plaintiff, in case of Same v. Twitchell:

"Q. What further conversation took place in Dr, Brock's office on the 10th day of January, the date given by the doctor, when you and your brother and Dr. Twitchell were there, about the arm?

"A. Well, I had been coming three weeks or so, and had been manipulated at the Maine General under ether, and I had been coming there, and the arm was continually getting worse, and I was mightily provoked, and I told Dr. Twitchell in a very straightforward way that I was provoked. He said there—

"Mr. Strout: State what happened.

"Q. State what you said; give the words.

"A. Well, I told him that, and about the only thing I had was my two arms, and that I wanted the use of those arms, and I said it in strong language, which I don't remember just what I said, but he said—

"Q. What did Dr. Twitchell say?

"A. Well, he says that I couldn't do him any harm; that he was protected by a liability insurance. (Objected to.)

"Mr. Morey: Simply the conversation that took place in the office that they went into. They went on and told the whole conversation, or parts of the conversation. I was just asking for the whole conversation of which they asked a part, nothing further; it seems to me we are absolutely within our rights.

"The Court: Conversation the doctor made. I think I will have—

"Mr. Strout: If you care to put it in, I don't object.

"Mr. Morey: He says if I care to put it in, he don't object.

"Mr. Strout: I object to the question. I don't object to his putting it in.

"Mr. Morey: I asked what they said at that conversation, and he told us what the doctor said.

"The Court: I think you are entitled to the whole conversation. It may have a bearing. I admit it subject to your objection. Of course, coming in any other way it would be objectionable and would be excluded.

"Mr. Strout: I would like to have the objection noted.

"The Court: Certainly, and subject to Mr. Strout's exception."

At the close of the evidence, and before arguments, the following occurred:

"The Court: Before counsel proceed, there was certain testimony introduced, drawn out inadvertently from the last witness, the plaintiff, who was on, Mr. McCann, this morning, relating to conversation he had with Dr. Twitchell, the defendant, in which allusion was made to conversation he had with Dr. Twitchell, and as a part of that, as I recollect it, he said that Dr. Twitchell informed him that it didn't make so much difference to him, or words to that effect, because he had liability insurance. On consideration of that at lunch, I feel that it has a tendency to prejudice the rights of the defendant, and I shall instruct the stenographer to strike out that remark, and I shall also instruct the jury to disregard it. Insurance is something that we take for our buildings. We take on our automobiles, liability. We take on our lives. It is no indication that we intend to be careless in operating, or we intend to set our buildings afire, or that we intend to take any chances with our lives or our health, and for that reason I think it would create an unfair impression in the jury's mind, and I instruct the reporter to strike it out from the record, and I also instruct and request the jury to pay no attention to that evidence when they come to consider the case. You may proceed.

"Mr. Strout: Will you preserve our rights?

"The Court: That is subject to Brother Morey's exceptions, if he desires, and subject to the rights, as it stands now, of both counsel. Brother Morey excepts to the striking out of that testimony?

"Mr. Morey: Yes.

"The Court: On what grounds do you base your exceptions?

"Mr. Morey: On these grounds first. * * * "The Court: I order it stricken out. I say it is something that everybody has, and I presume every surgeon—it is a dangerous profession, liable to accidents and suits of all sorts— every practicing surgeon probably has insurance. The great bulk of them, anyway, and every man who operates an automobile or anything that is liable to bring him into litigation has insurance. That is not, and should not be, and is not in the minds of any one, an indication that a party who obtains it intends to be careless or to injure anybody in the way he operates his machine, and the way he conducts himself about his business, about his buildings as to fire, and I think it should not be considered in this case, or in any of these cases, as bearing at all upon the question at issue here, which is whether or not the defendant failed in his duty to the plaintiff in performing this operation. Therefore I will request the jury to disregard it in their consideration of the rights of these parties. You may proceed, Brother Strout."

To all which rulings and instructions and refusals to instruct the said defendant excepts and prays that his exceptions may be allowed.

Argued before CORNISH, C. J., and SPEAR, KING, BIRD, and HANSON, JJ.

McGillicuddy & Morey, of Lewiston, for plaintiff.

Strout & Strout, of Portland, for defendant.

KING, J. Action to recover damages for alleged malpractice in setting and treating the plaintiff's left arm. A verdict of $4,900 for the plaintiff was returned, and the case comes up on the defendant's exception and motion for a new trial.

1. The bill of exceptions, printed in full in the margin,¹ clearly states the question presented thereunder.

Assuming, though not so deciding, that it was error for the plaintiff to testify that the defendant said, in a conversation with him concerning his liability for negligence in treating the arm, that he (the plaintiff) could do him no harm as he was protected by a liability insurance, we think such error should not be deemed a sufficient ground for a new trial in view of the fact that the presiding justice, upon his own motion, and soon after the admission of the statement, ordered it struck from the record and instructed the jury to pay no. attention to it in their consideration of the case, explaining to them fully why they should not do so.

It is not an infrequent occurrence in the trial of causes before a jury that inadmissible statements are made by witnesses before an objection is interposed, and sometimes such statements are erroneously admitted against objection. In such instances a common practice is, if the court becomes convinced, before the case is submitted to the jury, that an error has occurred, to order the inadmissible testimony struck from the record and to instruct the jury to disregard it. If such an error could not be cured in that way, then many trials would go for naught, for nothing more can be done to correct the error.

While there are cases to be found in some jurisdictions holding that the erroneous admission of objectionable evidence is not cured by its withdrawal coupled with an instruction to the jury not to consider it, such cases are exceptional. The great weight of authorities is in support of the rule that ordinarily the erroneous admission of improper evidence is cured, or so far cured as to be no longer a...