Ryan v. Barrett

• Decision Date: 28 October 1932
• Citation: 162 A. 793
• Parties: RYAN v. BARRETT.
• Court: Vermont Supreme Court

162 A. 793

RYAN

v. BARRETT.

Supreme Court of Vermont.

Oct. 28, 1932.

Exceptions from City Court of Rutland; Harold I. O'Brien, Judge.

Action by Mary Ryan against Reuben S. Barrett. Case transferred on plaintiff's exceptions to an order granting defendant's motion for a mistrial.

Affirmed, and remanded for trial on the merits.

Argued before POWERS, C. J, and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

Novak & Bloomer, of Rutland, for plaintiff.

James P. Leamy and Vernon J. Loveland, both of Rutland, for defendant.

GRAHAM, J.

This is an action of tort arising out of an automobile collision at Pittsford Mills, this state, in June, 1930. A trial by jury was begun before the Rutland city court. During the direct examination of the plaintiff, the following questions were asked and answers given:

"Q. What did you do immediately after the accident or collision? A. I got out of the car and talked to Mr. Barrett.

"Q. What did you say to him? A. I asked him how he happened to run into me.

"Q. What did he say to that? A. He said he was sorry but he didn't see me coming because he was dodging a car from Proctor, but to get my car fixed and his Insurance Company would pay the damage as he was to blame."

The defendant immediately moved for a mistrial on the ground that it was prejudicial error for the plaintiff to bring into the case the fact that the defendant was insured. The motion was granted, and the plaintiff was allowed an exception to the granting of the motion both as a matter of law and as a matter of discretion. The bill of exceptions states, "Exceptions allowed; * * execution stayed and cause passed to the Supreme Court."

We will assume, nothing appearing to the contrary, that the trial court acted under G. L. 2262, and in its discretion passed the exception to this court for determination before final judgment. In that view of the matter, the question is before us for decision. Hannah v. Hannah, 96 Vt. 469, 472, 120 A. 886.

The rule is clear and generally understood that it constitutes reversible error to inject into a case the fact that an insurance company is defending the suit. Ronan v. J. G. Turnbull Co, 99 Vt. 280, 290, 131 A. 788, and cases cited; MacDonald v. Orton, 99 Vt. 425, 431, 134 A. 599; Landry v. Hubert, 100 Vt. 268, 277, 137 A. 97. While this rule has its exceptions and limitations (Raymond's Adm'x v. Rutland Ry. Light & Power Co, 90 Vt. 373, 377, 378, 98 A. 909; Spinney's Adm'x v. O. V. Hooker & Son, 92 Vt146, 150, 102 A. 53; Cady, Adm'r, v. Lang, 95 Vt. 287, 289, 115 A. 140; McAndrews v. Leonard, 99 Vt. 512, 518, 134 A. 710; Note 56 A. L. R. 1418, 1432; Note 74 A. L. R. 849, 854), yet the exceptions and limitations are never to be used as an artifice to bring before the jury the poisonous fact of insurance. See Brooke v. Croson, 61 App. D. C. 159, 58 F.(2d) 885. In such circumstances the good faith of the party and his counsel is the guiding principle. Raymond's Adm'x v. Rutland Ry. Light & Power Co, supra; Spinney's Adm'x v. O. V. Hooker & Son, supra. The motion was addressed to the discretion of the trial court, and, except for abuse, its discretion is not reviewable. The motion challenges the good faith of the plaintiff...