Ritchie v. Perry

• Decision Date: 03 December 1930
• Citation: 152 A. 621
• Parties: RITCHIE v. PERRY.
• Court: Maine Supreme Court

152 A. 621

RITCHIE

v. PERRY.

Supreme Judicial Court of Maine.

Dec. 3, 1930.

Exceptions from Superior Court, Waldo County.

Action by Theodore Ritchie against F. Newell Perry. On defendant's exceptions and motion after verdict.

Motion sustained.

Argued before PATTANGALL, C. J., and STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

Buzzell & Thornton and H. C. Buzzell, all of Belfast, for plaintiff.

Ralph W. Farris, of Augusta, for defendant.

PATTANGALL, C. J.

Exceptions and motion. Action for property damage sustained in collision between two automobiles, alleged to have been caused by negligence of defendant. Verdict for plaintiff.

Exception was taken to the refusal of the presiding justice to order a mistrial after counsel for plaintiff, during cross-examination of defendant, had begun a question with the assertion, "At that time, September 11, 1929, you carried insurance. * * *" September 11, 1929, was the date of the collision.

The question, thus prefaced, was not completed. Objection was made and mistrial requested. The presiding justice excluded the question, warned the jury that the matter of insurance was immaterial, and refused to order a mistrial. Exceptions were noted.

Counsel for plaintiff then proceeded:

"Q. You and Mr. Ritchie talked this affair over after the accident, right there that night of September 11th?

"A. Why, yes. We naturally would."

"Q. And did you and he have any talk that night about insurance?

"The Court: Excluded.

"Plaintiff's Counsel: I will take exceptions to the Court's ruling."

The request that a mistrial should be ordered was not renewed.

The matter of bringing, or attempting to bring, to the attention of the jury the fact that defendant is insured against liability, or, to state it more accurately, that an insurance company and not the party of record is liable to pay damages if verdict is for plaintiff, has been before this court on three occasions, although never before in the exact form in which it now appears.

In Sawyer v. Shoe Co., 90 Me. 369, 38 A. 333, 335, direct evidence of the fact was admitted. Exceptions were taken and a new trial ordered. Mr. Justice Wiswell, voicing the opinion of the court, discussed the question in the following language:

"While the fact that the defendant was insured against accidents should have no legitimate bearing, it might very naturally have an improper influence upon the jury in passing upon the one question involved,—whether or not the defendant had failed to exercise that degree of care which the law required of it. * * * "We think that to allow juries, in cases of this kind, to take into consideration the fact that an employer was insured against accidents, would do more harm than good, and would Increase the already strong tendency of juries to be influenced, in cases of personal injury, especially where a corporation is defendant, by sympathy and prejudice."

This opinion was handed down June 1, 1897 and the bar, generally recognizing the impropriety of attempting to introduce evidence which this court had declared to be not only immaterial but prejudicial, apparently refrained for many years from attempting to influence juries by calling attention to the factor of insurance in cases involving negligence on the part of a defendant.

Twenty years later, however, the question again arose in a slightly different form. In McCann v. Twitchell, 116 Me. 490, 102 A. 740, 741, as a part of a conversation alleged by plaintiff to have occurred between him and defendant, plaintiff testified that defendant said that "he was protected by a liability insurance." Exceptions were taken to the introduction of this testimony. But it appeared that the presiding justice, after having permitted the inadmissible testimony, changed his ruling, ordered it stricken from the record, and instructed the jury to disregard it. Exceptions were overruled on the ground that "ordinarily the erroneous admission of improper evidence is cured, or so far cured as to be no longer a sufficient ground for a new trial, by being withdrawn or struck from the record and an instruction given to the jury to disregard it entirely."

It is to be noted that defendant did not in this case request a mistrial. He objected to the admission of the testimony, and, his objection being overruled, noted an exception. After deliberation, the presiding justice reversed his ruling, and ordered the evidence stricken from the record, thus in effect sustaining defendant's objection and leaving him no ground for exception.

It is also to be noted that the admissible evidence in the case warranted a finding of liability and that the damages assessed were reasonable; in other words, that the result indicated that the jury was not prejudiced by having learned of the fact of insurance. The opinion states: "A careful study of the evidence does not satisfy us that their verdict is wrong, either as to the defendant's liability, or as to the amount of damages awarded the plaintiff."

Apparently some members of the bar were impressed with the view that the position taken by the court in McCann v. Twitchell, supra, created an opportunity to get before the jury the immaterial and prejudicial fact of insurance and suffer no more severe penalty than an instruction from the court to the jury that the fact should be disregarded in so far as liability or the extent of damages was concerned; and in the case of Goodie v. Price, 125 Me. 36, 130 A. 512, it appeared that plaintiff's attorney was guilty of "deliberately pursuing a course of cross-examination of the defendant's son for the purpose of disclosing the fact that an insurance company was defending the cause."

That case came before this court on general motion, in connection with which defendant urged that, "though the verdict might be permitted to stand upon the evidence pertaining to the accident and the manner in which it happened * * * the case was prejudiced against the defendant by the alleged improper conduct of the plaintiff's attorney."

After stating that "a careful examination of the evidence does not reveal a verdict that warrants the intervention of the court," the opinion discussed the matter of the injection into the case of the Insurance feature: "The court cannot avoid the conclusion from the testimony that the plaintiff's attorney in pressing the cross-examination which was calculated to disclose the presence of an insurance company deliberately transgressed the bounds of legal ethics in his persistent effort to accomplish that end."

We must assume that, had not the verdict satisfied the conscience of the court, new trial would have been ordered because of the misconduct of counsel so emphatically condemned.

In People v. Ah Len, 92 Cal. 282, 28 P. 286, 27 Am. St. Rep. 103, where it...