Moy Quon v. M. Furuya Co.

• Decision Date: 17 September 1914
• Docket Number: 11948.
• Citation: 143 P. 99,81 Wash. 526
• Court: Washington Supreme Court
• Parties: MOY QUON v. M. FURUYA CO.

143 P. 99

81 Wash. 526

MOY QUON v. M. FURUYA CO.

No. 11948.

Supreme Court of Washington

September 17, 1914

Department 1. Appeal from Superior Court, King County.

Action by Moy Quon, guardian ad litem of Moy Sue, against the M Furuya Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Brightman Halverstadt & Tennant, of Seattle, for appellant.

Kerr &amp McCord, of Seattle, for respondent.

ELLIS J.

Moy Quon, as guardian ad litem, brought this action to recover damages from the defendant for personal injuries sustained by Moy Sue, an incompetent person, through being struck by the defendant's automobile. For convenience, Moy Sue will be referred to throughout as plaintiff and respondent. The accident happened at the intersection of Fourth Avenue South and Jackson street in the city of Seattle. The complaint charged that the automobile was being operated by defendant's driver at an excessive rate of speed, and that no warning was given of its approach. The defendant's answer admitted that the automobile was in charge of its driver and collided with the defendant at the place in question, denied the charges of negligence, and set up, as an affirmative defense, contributory negligence on the part of the plaintiff. This defense was traversed by the reply. No question is raised as to the sufficiency of the evidence to take the case to the jury. We shall therefore point out only its salient features.

Jackson street runs east and west; Fourth avenue north and south. The automobile came down Fourth avenue from the north, and swung into Jackson street on the north side in a wide curve, to pass up Jackson street to the east. The plaintiff had left the sidewalk on Fourth avenue, near the intersection of these two streets, when he was struck by the automobile. The driver testified that he first saw the plaintiff when about 30 or 40 feet from him; that the plaintiff was walking slowly, with his head down and his hands in his pockets; that the machine was running from 10 to 11 miles an hour; that he sounded the horn, and the plaintiff started back, when the machine struck him. Witnesses for the plaintiff testified that the speed of the automobile was from 15 miles to 20 miles and hour; that no horn was sounded or other warning given; and that the speed of the automobile was such that, after striking the plaintiff, it skidded a considerable distance, and came to a standstill on the other side of Jackson street, near the curb. The plaintiff testified that he first saw the automobile when it was about 30 feet from him. Ordinances of the city in evidence limit the lawful speed at the place in question to eight miles an hour going upgrade and four miles an hour going downgrade. The plaintiff's skull was fractured, and he was otherwise severely bruised. He was removed, first, to the city hospital, where he remained for nine days, then to Minor hospital, where he remained until about December 1st, then to Broadway hospital, where he remained until December 15th, when he was taken in charge by his brother. He was operated upon for a depressed fracture of the skull. A piece of his skull was entirely removed, so that the scalp comes in contact with the membrane of the brain. During much of the time while he was in the hospitals, he was in a semiconscious condition. He has developed epilepsy, which the doctors attribute to the injury. The trial resulted in a verdict in favor of the plaintiff for the sum of $5,000. Defendant's motion for a new trial was overruled, and judgment entered accordingly. The defendant appeals.

The first claim of error is based upon the following incident: One McKee, a witness for the appellant, testified that the assistant manager of the appellant had visited the respondent in the hospital and propounded to him certain written questions; that he (McKee) visited the respondent four or five times, on the last visit, November 1, 1912, asking him the same questions. Afterwards he reduced what he claimed were the respondent's answers to writing, and, upon the trial, was permitted to read or detail the substance of these answers to the jury. While he was testifying, respondent's attorney interjected the following question:

'You were up there as the agent of the insurance company, trying to settle this case? A. Yes, sir. Q. That is what you are here for now? A. Yes, sir. Exactly.'

After McKee had finished his direct testimony, respondent's attorney, on cross-examination, developed the fact that McKee was claim agent for the International Casualty Insurance Company, with which the appellant carried liability insurance, and visited the respondent in that capacity. When the first question was asked touching this matter, counsel for the appellant moved to discharge the jury and continue the case for trial to a new jury. The request was refused. The appellant contends that the judgment should be reversed for this reason if for no other.

In a personal injury suit, the fact that the defendant carries liability insurance is wholly immaterial on the main issue of liability. Being essentially prejudicial to the defendant, its wanton intrusion by the plaintiff is positive error, constituting ground for reversal. This is the established rule in this state. Iverson v. McDonnell, 36 Wash. 73, 78 P. 202; Lowsit v. Seattle Lumber Co., 38 Wash. 290, 80 P. 431; Stratton v. Nichols Lumber Co., 39 Wash. 323, 81 P. 831, 109 Am. St. Rep. 881; Westby v. Washington Brick, Lime & Mfg. Co., 40 Wash. 289, 82 P. 271; Birch v. Abercromble, 74 Wash. 486, 133 P. 1020; Shay v. Horr, 139 P. 604. This rule, however, was never intended to override the equally positive and salutary principle that a party has the right to cross-examine the witnesses produced by his adversary touching every relation tending to show their interest or bias. Many facts wholly immaterial, and even positively prejudicial, on the main issue may be material as touching the credibility of of a witness. When a party offers a witness, the relations of that witness to the thing in issue and his interest in the result become material as affecting his credibility. It is universally held that these things may be developed on cross-examination. The Supreme Court of Pennsylvania, touching a situation closely parallel to that here presented, has said:

'It is always the right of a party, against whom a witness is called, to show, by cross-examination, that he has an interest, direct or collateral, in the result of the trial, or that he has a relation to the party from which bias would naturally arise. Such an examination goes to the credibility of the witness. Ott v. Houghton, 30 Pa. 451; Batdorff v. Bank, 61 Pa. 179. The right is not to be denied or abridged because incidentally facts may be developed that are irrelevant to the issue and prejudicial to the other party. This chance the party takes when he calls the witness. The defendant's witness in his examination in chief had testified that he was attorney for it. This was but a partial disclosure of facts that might create a bias, and it was competent for the plaintiff to show the full extent of the witness' relation to the parties in interest in defending the action. The defendant opened the door for this inquiry, and, as long as it was conducted in good faith for a legitimate purpose, the plaintiff was within his rights.' Lenahan v. Pittston Coal Mining Co., 221 Pa. 626, 629, 70 A. 884, 885.

The following language of the federal Circuit Court of Appeals, Sixth Circuit, is also directly pertinent:

'The plaintiff did not seek to introduce the fact that the defendant was carrying employers' liability insurance. The matter was brought out upon cross-examination and properly and necessarily brought out. Mr. Furniss testified that he had telephoned Mr. Collier to send a physician to assist Dr. Wadlington, and Dr. Burns was recommended. Dr. Burns stated that he was employed through Mr. Collier by the insurance company to go to the city hospital in Whitford's case. The defense having thus brought Mr. Collier into the case, counsel for plaintiff had the right to ask, and the jury were entitled to know, who Mr. Collier was, and how this insurance company came to send Dr. Burns to the city hospital, as reflecting upon the precise position Dr. Burns occupied both as a physician and as a witness.' Wabash Screen Door Co. v. Black, 126 F. 721, 725, 726, 61 C. C. A. 639, 643, 644.

See, also, Genest v. Odell Mfg. Co., 75 N.H. 509, 77 A. 77.

This court has repeatedly sustained the same latitude in cross-examination of witness, and also in the examination of jurors on their voir dire. Shoemaker v. Bryant Lumber etc., Co., 27 Wash. 637, 68 P. 380; Perry v. Centralia, 50 Wash. 670, 97 P. 802; Hoyt v. Independent Asphalt Paving Co., 52 Wash. 672, 101 P. 367; Armstrong v. Yakima Hotel Co., 75 Wash. 477, 135 P. 233. Here the appellant, through its assistant manager, and the casualty company, through its claim agent, had plied the injured man, while he was in the hospital, with carefully written questions, and the claim agent was thereafter produced by the appellant as a witness for the purpose of discrediting the respondent's testimony. The claim agent also interviewed one of the respondent's witnesses, and took the stand for the purpose of discrediting his testimony. In pursuing this course, the appellant was acting entirely within its rights, but it thereby waived the immunity from inquiry as to its liability insurance. By producing the agent of the casualty company as its witness, the otherwise immaterial fact of insurance became a material factor going to the interest or bias and consequent credibility of this witness. The distinction between the case here presented and those relied upon by the appellant is found in the fact that...