Miller v. Schafer

• Decision Date: 13 October 1967
• Docket Number: No. 8098,8098
• Citation: 102 Ariz. 457,432 P.2d 585
• Parties: George Alfred MILLER and City of Phoenix, a municipal corporation, Appellants, v. Joseph Hugh SCHAFER, Appellee.
• Court: Arizona Supreme Court

Page 585

432 P.2d 585

102 Ariz. 457

George Alfred MILLER and City of Phoenix, a municipal corporation, Appellants, v. Joseph Hugh SCHAFER, Appellee.

No. 8098.

Supreme Court of Arizona, In Division.

Oct. 13, 1967.

Rehearing Denied Nov. 21, 1967.

Hughes & Hughes, by John C. Hughes, Phoenix, for appellant miller.

Patrick E. Burke, Asst. City Atty., Phoenix, for appellant City of Phoenix.

McKesson, Renaud & Cook, by J. Gordon Cook, Phoenix, for appellee.

McFARLAND, Vice Chief Justice:

Appellant, George Alfred Miller, hereinafter designated plaintiff, brought an action to recover for injuries received in an automobile accident. Appellee, hereinafter designated defendant, was approaching plaintiff's car from the opposite direction when he turned left in front of plaintiff. The jury found for the defendant, and plaintiff has appealed. Since there was evidence that the plaintiff was exceeding the speed limit at the time of the accident, and since on appeal we must take the evidence in the light most favorable towards upholding the jury verdict, we cannot agree with plaintiff's assignment of error that the verdict was not justified by the evidence.

Plaintiff, however, assigns eight other errors, all of which boil down to the complaint that it was reversible error on the part of the trial court to permit the defendant to inform the jury, by his questioning of plaintiff's doctor, that the plaintiff was covered by workmen's compensation insurance. Appellant claims that this procedure was prejudicial because it might have led the jury to believe that the plaintiff ought not to be permitted to recover because he had already collected compensation for his injuries.

In Arizona, as in most states, it is settled that it is improper to call the jury's attention to the fact that the defendant carries liability insurance. Di Pietruntonio v. Superior Court, 84 Ariz. 291, 327 P.2d 746. Under no circumstances would such evidence be admissible when its relevance was not shown. Muehlebach v. Mercer Mortuary and Chapel, Inc., 93 Ariz. 60, 378 P.2d 741.

Applying this principle to cases where the insurance coverage is for workmen's compensation, it would seem to be clear that such coverage is irrelevant and that it is improper to introduce it with no apparent purpose other than to influence the jury.

'The defendant will ordinarily be unable to disclose to the jury that plaintiff has made a third party election; nor will defense counsel be able to argue that should they find for the defendant, plaintiff will still receive a compensation award, for these matters do not concern and are of no benefit to the third party.' Udall--Alternative Remedies for Industrial Injuries, Sec. 12, citing Borrow v. El Dorado Lodge, 75 Ariz. 139, 252 P.2d 791.

'The general rule is that it is improper to bring before a jury information regarding the injured plaintiff's right to workmen's compensation benefits. * * * The rule is based * * * on the assumption that knowledge of that fact will more likely than not influence the jury against the plaintiff on the issues of liability and damages.' Ridgway v. North Star Terminal and Stevedoring Co. (Alaska 1963) 378 P.2d 647.

We conclude, therefore, that the injection of evidence tending to show the existence of workmen's compensation insurance into this case was error. The courts are divided on the question of whether it is Reversible error. For an excellent collection of cases on this subject, see 77 A.L.R.2d 1154.

'Generally, the introduction of information showing or tending to show the jury that the plaintiff is entitled to workmen's compensation benefits has been held to constitute prejudicial error necessitating a reversal or new trial. * * *' 77 A.L.R.2d 1154, at 1155 and 1156.

Whether the error in admitting the evidence in the instant case was reversible depends considerably upon the surrounding circumstances, which are as follows:

Dr. Harold Pittman testified for the plaintiff. During his cross-examination he indicated that he would be glad to examine the hospital records to confirm one of his statements. Plaintiff's attorney then produced the hospital records from his possession and, without first examining the papers carefully, stated: 'We will stipulate that these * * * may go into evidence if counsel would like * * *.' Defendant's counsel said that he had no objection, and the court ordered them received in evidence. From these records, defendant's attorney then selected a report written by the doctor, and read part of it to him. Plaintiff's attorney, again without first taking the precaution of examining the document, demanded that the whole report be read, if it were to be used at all. Defendant's attorney tried to comply, but plaintiff's attorney suddenly realized that the letter contained reference to workmen's compensation coverage, and demanded that the reading of the complete letter cease before the last sentence was reached. Defendant's attorney then stated: 'I would rather read the whole paragraph if I have to read it,' and stated further that he would offer the document in evidence. The court observed that it was already in evidence. At this point plaintiff's counsel stated:

'In this hospital record there are certain things we think should be blotted out, and we request the court to now--'

Defense attorney then said:

'Without any qualifications whatsoever, there are certain now (sic) material things I would like to go into.'

To which plaintiff's attorney replied:

'Well we ask the court to rule on the materiality of that.'

The court then stated: 'Well, the objection will be denied.'

Plaintiff's attorney evidently hoped to prove that some statement of the doctor on the witness stand was inconsistent with some statement by the doctor in the report from which he was reading, for he then asked the doctor:

'The reason for the report, doctor, of April 27, 1961, was to reopen George Alfred Miller's case with the Industrial Commission. Isn't that true?'

Defendant's attorney at once said:

'We would object under the circumstances and ask that the jury be admonished to disregard it.'

The court ruled that 'The objection will be overruled and it may stand.'

Counsel then argued the point briefly out of the presence of the jury, after which the court stated:

'The objection will be overruled. I will permit him to pursue it. You may request an instruction on it if you desire.'

The cross-examination of the doctor then proceeded as follows:

'A. The report of April 26, 1961 was rendered to the Industrial Commission; that was, shall I say, one of the purposes of the report. The purpose of a report of course is document information for various people concerned. So that it was to document information for my purpose and also to furnish the Industrial Commission with information which would help them in their decision as to whether or not the case should be reopened.

'Q. When was the case first closed?

'A. My records would not show that. I am sorry.

'Q. I think September 17, 1960.

'A. That is correct. On September 17, 1960 the patient was discharged from Industrial Commission.

'Q. That is the reason; that as of that date you were of the opinion that his condition is stationary and there is no evidence of disability? Last line.

'A. That was my impression at that time.

'Q. Also was it your impression that there was no permanent disability?

'A. That is correct. No compensable permanent disability.

'Q. Well the wording that appeared in that report was 'No permanent disability.'

'A. Yes, those are my words of that date.'

At this point, though the Industrial Commission's name had been introduced, the jury could not have known whether the compensation case was closed because plaintiff was ineligible for payments, or...