Melcher v. Connell

• Decision Date: 23 November 1926
• Citation: 250 P. 742,119 Or. 626
• Parties: MELCHER v. CONNELL.
• Court: Oregon Supreme Court

250 P. 742

119 Or. 626

MELCHER v. CONNELL.

Supreme Court of Oregon

November 23, 1926

In Banc.

Appeal from Circuit Court, Multnomah County; George Rossman, Judge.

Action by George Melcher against De Witt Connell. Judgment for plaintiff, and defendant appeals. Affirmed.

E. L. McDougal, of Portland, for appellant.

Lewis Lewis & Finnigan, of Portland, for respondent.

RAND J.

This action was instituted to recover the damage resulting to plaintiff from a collision between two automobiles negligently caused by defendant, the one being driven by plaintiff, the other by defendant. Plaintiff had judgment and defendant appeals, contending that the following circumstance occurring at the trial entitles him to a reversal of the judgment.

Dr Walker, who attended the plaintiff during his illness resulting from the collision, was called as a witness by plaintiff and, in response to a question propounded by plaintiff's attorney, testified as follows:

"Q. For how long a time did you treat him? A. Oh, off and on for, as I remember, two or three months that he was--he would keep coming into the office; but, after a time, he went to an oculist in the Journal building, on account of the condition of the eyelids, and I believe that the insurance company sent him there."

Whereupon the following proceedings were had:

"Mr. McDougal: Now, if the court please, at this time I desire to move the dismissal of the panel from a further consideration of this case. At the time we started out, we cautioned Mr. Lewis to warn his witnesses, and he said he would; and this appears to me to be a willful injection of this matter in this case at this time. I ask that the jury be discharged from further consideration of this case.

"Mr. Lewis: I had no intention of this witness making any such a remark.

"Mr. McDougal: Let the record show I mentioned it to you.

"Mr. Lewis: I admit that.

"Mr. McDougal: You stated that you warned your witnesses.

"Mr. Lewis: Yes.

"Mr. McDougal: And you have not done it.

"Mr. Lewis: Well, this is one witness I have not warned because I never thought he had any knowledge of that.

"The Court: In cases of this kind, insurance plays no feature in the case. There is nothing indicating what insurance company, if any, was involved in this, life insurance or accident insurance, or what not. The remarks of the witness will be stricken from the record, and the jury instructed to entirely disregard the remark made by the witness. Proceed.

"Mr. McDougal: Just for a moment, for the purpose of the record, I want to show how this--

"Mr. Lewis: Let the record show that there has been no willful attempt on the part of the plaintiff--

"Mr. McDougal: That is a matter of conclusion.

"Mr. Lewis (continuing):--to inject anything of this kind in the record.

"The Court: The statement made by the witness is stricken from the record, and the jury is instructed to entirely disregard

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