Oslund v. STATE FARM MUTUAL AUTOMOBILE ASS'N, 14981.
| Decision Date | 22 March 1957 |
| Docket Number | No. 14981.,14981. |
| Citation | 242 F.2d 813 |
| Parties | H. R. OSLUND, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a corporation, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gardner & Reeder, James K. Gardner, Hillsboro, Or., Maguire, Shields, Morrison & Bailey, Walter J. Cosgrave, Portland, Or., for appellant.
Vergeer & Samuels, Duane Vergeer and Charles S. Crookman, Portland, Or., for appellee.
Before STEPHENS, HEALY and CHAMBERS, Circuit Judges.
Appellant, H. R. Oslund, was involved in an automobile accident with A. L. Brock in Oregon on May 22, 1953. At the time of the accident A. L. Brock was operating an automobile owned by Robert H. Lafky, and insured by appellee, State Farm Mutual Automobile Insurance Co. Appellant sued Brock in the state court of Oregon and recovered judgment for the sum of $19,685 for personal injuries. An action was instituted in the United States District Court by Oslund under the omnibus clause of Lafky's insurance policy against appellee.1 At the trial appellee Insurance Company claimed that Brock failed to forward suit papers in the original state action of Oslund v. Brock and also that the accident arose out of the operation of a garage within the meaning of an exclusion clause of the policy. Oslund claimed that appellee Insurance Company had denied coverage to Brock on the grounds that the accident arose out of the operation of a garage and that the failure of Brock to forward suit papers was excused. Oslund also denied that Brock was using the automobile in the course of his business as a garage mechanic at the time of the accident.2
Brock testified that he and Lafky, the owner of the insured auto, had an understanding that each had the privilege of using the other's car. That on the morning of the accident Lafky left his car at Brock's garage for a motor tune-up. Brock stated that he tuned the car up around 9:30, made a road test and placed the car on his lot around 10:00 a. m. That about 2:00 p. m. he changed clothes, got into Lafky's car and went down to see Ralph Thomison, a friend of his, to buy some eggs and on the way back the accident occurred. Thomison verified the fact that Brock visited his place and had picked up some eggs.
On cross-examination Brock was asked questions based upon prior depositions taken of Brock which might cast doubt whether the road test was made in the morning or was being made at the time of the accident. But Brock emphatically stated at the instant trial that it was his impression that he road tested the car in the morning when he backed out of the shop and that as far as he was concerned, he was through working for the day and was not carrying on his normal business pursuits when the accident occurred in the afternoon.
Lafky also testified that Brock informed him of the accident shortly after it had occurred. Lafky testified that he had had conversations with the insurance adjuster, and from such conversations he got the definite impression that the insurance company was not going to cover Brock. On cross-examination Lafky stated that when Brock told him of the accident, he (Brock) did not actually tell him that he was testing the car at the time of the accident, but that he (Lafky) Lafky was further questioned as to an automobile claim report he had made out at the insurance company's office the day of the accident. Lafky admitted that he had signed the report but that someone else in the office did all the writing. When the report was offered in evidence, Oslund's attorney objected to its introduction, and the following discussion took place:
The report was thereafter placed in evidence, as defendant's Exhibit 7, and was read to the jury. In the report it was stated "I had taken my car to the garage for motor work — in testing car, garage owner wrecked it."
The jury returned a general verdict in favor of the insurance company3 and a special finding to-wit:
"Was A. L. Brock at the time of the accident using Mr. Robert H. Lafky\'s automobile in course of his business as a garage mechanic: Yes."
Oslund, the appellant, here alleges many grounds for reversal and for a new trial, but they can be combined into four main claims:
(1) There was no substantial evidence to support the jury's verdict or in allowing appellee's defenses to go to the jury.
(2) The court erred in giving one of appellee's instructions and in denying a proposed instruction of appellant.
(3) The court erred in admitting into evidence Defendant's Exhibit 7, the accident report.
(4) Appellant was deprived of a fair trial because of appellee's counsel's improper and incorrect argument as to matters outside of the record and the admission of Defendant's Exhibit 7, the report to the insurance company by Lafky.
The ground that there was not substantial evidence to support the jury's verdict or to allow the defenses to go to the jury is not before this Court. Appellant did not, at the close of the evidence or case, interpose a motion for a directed verdict, nor request that the defenses be excluded from consideration by the jury. This Court can only consider the question of sufficiency of the evidence when that has been made a question of law, and this can be done only by interposing a motion for a directed verdict at the close of all the evidence. Zimmerman v. Emmons, 9 Cir., 1955, 225 F.2d 97, 99 and cases cited therein. Also: Een v. Consolidated Freightways, 8 Cir., 220 F. 2d 82 and cases cited therein.
We have examined the instructions given by the trial court as well as the instructions denied, and we find no reversible error in the actions of the district judge.
We are of the opinion that Exhibit 7 (the accident report) was improperly admitted into evidence. Appellee in its brief now admits that Exhibit 7 should not be used for substantive evidence. But when the exhibit was introduced, no limitation was placed on its admission. In fact, appellee stated that "it is further evidence on what the conversation was" as between Brock and Lafky. Lafky stated that Brock did not tell him whether he was testing the car when it was being used and that he (Lafky) only "assumed" that that was what Brock was doing when the accident occurred. We have serious doubts whether the accident report would be admissible even for impeachment purposes. It is not admissible to impeach Brock. The prejudicial effect of this erroneous admission is further magnified when appellant's final ground for reversal to which we now turn our attention is considered.
In summing up the case before the jury, the following remarks were made:
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