Runnacles v. Doddrell

• Decision Date: 01 February 1960
• Docket Number: No. A--708,A--708
• Parties: Harry RUNNACLES and Louise Runnacles, his wife, Plaintiffs-Respondents, v. Grace DODDRELL and Kenneth S. Doddrell, her husband, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 363

59 N.J.Super. 363

157 A.2d 836

Harry RUNNACLES and Louise Runnacles, his wife, Plaintiffs-Respondents, v. Grace DODDRELL and Kenneth S. Doddrell, her husband Defendants-Appellants.

No. A--708.

Superior Court of New Jersey Appellate Division.

Argued Jan. 12, 1960.

Decided Feb. 1, 1960.

Joseph E. Connolly, Livington, for defendants-appellants (Marley, Winkelried & Hillis, Newark, attorneys).

William Ward Wimmer, N. Arlington, for plaintiffs-respondents.

Before Judges GAULKIN, SULLIVAN and FOLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

Appeal is taken by defendants from an adverse jury verdict entered in the Law Division.

Both plaintiffs suffered personal injuries when the vehicle owned and operated by Harry Runnacles was in collision with the Doddrell car. The limited scope of the appeal makes it unnecessary for us to recite the facts in detail.

The first point made by appellants is that the court erred in denying a motion for mistrial after mention by a witness of the words 'insurance company.' It appears that James Wilson when called as a witness by the defendants testified that he had reported the accident to the police by telephone. He also testified to facts concerning the operation of plaintiffs' car shortly before the accident from which the jury might have inferred that the driver was negligent. On cross-examination he was asked whether he had reported these facts to the police during the telephone conversation; he replied that he had not. The following then took place:

'Q. As a matter of fact, you never told the police up to this very day about the happening by the dumps, about the car pulling out in front of you, the green Packard, did you? A. I told Chief Geffken.

'Q. When did you tell him? Now, isn't it a fact--

'Mr. Connolly: Let him answer, you have asked him a question.

'Q. When did you tell him? A. It was sometime after the accident.

'Q. Isn't it a fact that it was only within the past several weeks that the Chief found out that you had this information that you speak of? A. What was that?

'Q. Isn't it a fact that the Chief only found out within the past few weeks about this information that you are supposed to have? A. I don't believe so; I believe I didn't make a formal report of this at the police station because it wasn't required at that time.

'Q. I see. As a matter of fact, you never made a formal report, did you? A. To the insurance company.

'Q. To the insurance company. Now, you never made a formal report to the police, did you? A. By phone and they said they would contact me if they wanted anything more.

'Q. But you never signed a report for the police? A. I never signed a report for the police.' (Emphasis added.)

Counsel for the defendants entered no objection to the underscored portions of the examination nor did he seek to have them stricken or to have the jury instructed to disregard them. However, after the witness had stepped down and a brief recess had been taken, counsel out of the presence of the jury moved as follows:

'Mr. Connolly: The defendant respectfully moves for mistrial on the ground that there was mention of the word insurance in the cross examination of a witness by Mr. Wimmer.

'The defendant feels as though his position in this case is prejudiced thereby.'

And the Court ruled:

'Well, the Court denies this motion due to the fact that it was not one of the parties, and it was mentioned rather casually and without trying to influence the Court or anybody else.'

Preliminarily, it is settled that the ruling on a motion for mistrial is discretionary with the trial judge and, unless such discretion is abused, it will not be disturbed. Bradley v. D. E. Cleary Co., 86 N.J.L. 338, 90 A. 1015 (E. & A. 1914); Hansson v. Catalytic Construction Co., 43 N.J.Super. 23, 127 A.2d 431 (App.Div.1956); Hurley v. Sternick, 3 N.J.Misc. 1048, 130 A. 634 (Sup.Ct.1925).

In jurisdictions where the precise question has been raised it has been held that a mistrial may not properly be granted where the challenged utterances do not tend to establish that the defendant was covered by insurance any more than they tend to establish that the plaintiff was insured, Annotation, 4 A.L.R.2d 761, 819 (1949). Typical of this rule is Jimmie Guest Motor Co. v. Olcott, 26 S.W.2d 373 (Tex.Civ.App.1930) where it was held that a response to a question which disclosed that a statement had been made to an insurance company's adjustor was not prejudicial because the remark supplied no connection between the adjustor and the controversy under consideration, and because there was no indication that it referred to the appellant as the person covered by the insurance. Accord Siratt v. Worth Constr. Co., 263 S.W.2d 842 (Tex.Civ.App.1953). Likewise in Crawford v. Alexander, 259 S.W.2d 476 (Ky.Ct.App.1953) the Kentucky court held that an accidental reference to insurance was not prejudicial error when the jury was instructed to disregard it and where the remark could have referred as well to an accident insurance adjustor as to an automobile indemnity insurance representative. See Huling v. Finn, 67 R.I. 369, 24 A.2d 620 (1942).

Since there were two automobiles involved in the occurrence from which this action arose and since the unwitting remark of the witness, unsolicited by the cross-examiner, could have had reference to the 'insurance company' of either party the denial of the motion for mistrial could be sustained on the sound rationale of the cited cases.

However, we prefer to rest our decision on broader grounds. The exercise of judicial discretion in ruling on a motion for mistrial involves the appraisal by the trial court of the probable effect of the objectionable utterance on a fair trial. It is undesirable that a trial be aborted and that the parties be required to incur the expense attendant upon retrial. By the same token expedition should not be served at the expense of crippling the cause of one party or the other by permitting the intrusion of evidence which will serve to confuse the jury or cause it to reach its verdict by emotion rather than by reason.

But the exercise of the discretionary power to grant or deny a mistrial, merely because the fact that defendant is insured is revealed, should be guided by a consideration of the probable effect of such showing on jurors of the present day, in the light of the experience which they bring with them to the jury box. In these days the juror who is neither automobile owner or operator is a rarity. All who obtain registration of their vehicles know that they must either carry liability insurance or contribute to the unsatisfied judgments fund. And it seems likely that if they do think of it, jurors assume in every automobile case that some financial responsibility exists over and above defendant's ability to satisfy a judgment. This fact has been noted by...