Scally v. Pacific Gas & Electric Co.

• Decision Date: 25 February 1972
• Citation: 23 Cal.App.3d 806,100 Cal.Rptr. 501
• Court: California Court of Appeals Court of Appeals
• Parties: J. M. RUTH et al., Plaintiffs and Appellants, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Defendant and Respondent. Civ. 27989.

Page 501

100 Cal.Rptr. 501

23 Cal.App.3d 806

J. M. RUTH et al., Plaintiffs and Appellants, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Defendant and Respondent.

Civ. 27989.

Court of Appeal, First District, Division 2, California.

Feb. 25, 1972.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Sanford N. Gruskin, Asst. Atty. Gen., R. H. Connett, Deputy Atty. Gen., Sacramento, for plaintiffs-appellants.

F. T. Searls, Gilbert L. Harrick, San Francisco, for defendant-respondent.

KANE, Associate Justice.

In this negligence property damage action, the bifurcated issue of liability was resolved by jury verdict in favor of respondent Pacific Gas and Electric Company (hereafter P.G. & E.). ¹ Plaintiffs appeal from the judgment entered upon that verdict, claiming prejudicial misconduct on the part of respondent's counsel during jury voir dire and error on the part of the trial court with respect to jury instructions.

About 2:00 p.m. on September 16, 1965 a fire broke out a short distance south of the City of Napa. The origin of the fire was traced to the area beneath the Vaca-Lakeville powerline owned, operated and maintained by respondent. The Vaca-Lakeville powerline consists of six 230,000 volt conductors running generally in an east-west direction. Immediately south of the southerly conductors in the area of the origin of fire there was a laurel tree. During the afternoon when the fire started, the Napa area was under the influence of a strong northerly wind, the vegetation was dry, and the temperature was in the high 80's.

Appellants advanced the theory that the fire was started by reason of contact between the laurel tree and the highly energized uninsulated conductor. In order to support the above theory, appellants introduced the following evidence: The origin of the fire was the right of way beneath the span of the powerline in the vicinity of the laurel tree. The right of way was not cleared of combustible material (grass, logs, debris, etc.). The state fire investigators, Mr. Van Dusen and Mr. Holbrook, observed on the same day that the bottom conductor on the south side of the powerline came in contact with one of the branches of the laurel tree while under the influence of the northerly wind. A photograph taken by Mr. Van Dusen on the same afternoon showed that the branch and the conductor were in close proximity under the force of wind. Respondent had not trimmed the trees along this powerline since 1957. The clearance between the tree and the conductor was only 8.63 feet in an at-rest position. Defoliated limbs from the north side of the tree (the side facing the powerline) contained localized burning and charring along the branches and at the tips. The Division of Forestry investigators could find no cause of fire other than the powerline. The expert testimony of Dr. Tilles pointed out that while contact between a 230,000 volt electric conductor and the laurel tree could start a fire in the branches of the tree, such contact would not necessarily leave a mark on the electric conductor, cause the circuit breakers to operate, result in a large, visible arc of electricity, nor necessarily cause substantial splitting of the wood or bark of the tree.

In rebuttal, respondent introduced evidence showing that there was no physical evidence of arcing between the limbs and the laurel tree. Its expert witnesses, Dr. Lewis and Mr. Collins, demonstrated that there cannot be electric arcing between a conductor and a tree limb without leaving distinctive evidence on the limb and conductor. Without arcing there would be no fire. Dr. Lewis also testified that if arcing between the conductor and limb had occurred, it would have continued until the circuit breakers would have deenergized the line which they did not do. The eyewitnesses (Mr. Van Dusen and Mr. Holbrook) saw no electric arcing, bright light or flash of fire, there was no sound, there were no falling leaves, debris or embers or other physically observable evidence to support a possible contact.

In ruling on a motion for a new trial the trial judge observed that the liability was very close with substantial evidence on both sides.

I. Respondent's reference to insurance companies on voir dire examination did not constitute prejudicial misconduct.

The record discloses the following colloquy between respondent's counsel and the first prospective juror: 'MR. THISSELL: Mr. Mead, do you own any stock in a Northwestern Mutual Insurance Company? JUROR MEAD: No. MR. THISSELL: Have you ever worked for this Company? JUROR MEAD: No. MR. THISSELL: Aetna Insurance Company? JUROR MEAD: No. MR. THISSELL: Did you ever own stock or work for them? JUROR MEAD: No. MR. THISSELL: The Reliance Insurance Company? JUROR MEAD: No. MR. THISSELL: The Grenals Insurance Company? JUROR MEAD: No. MR. THISSELL: The Aetna Life and Casualty? JUROR MEAD: No. MR. THISSELL: The Travelers Insurance Indemnity Company? JUROR MEAD: No. MR. THISSELL: The Safeco Insurance Company? JUROR MEAD: No. MR. THISSELL: Fireman's Fund Insurance Group? JUROR MEAD: No. MR. THISSELL: You say--you hesitate, did you own stock at one time in that company? JUROR MEAD: No, I never did, I heard they've--I thought I heard Farmers, my car is insured with Farmers Insurance. MR. THISSELL: Well, I don't believe Farmers is involved in this but Fireman's Fund Insurance Group.' (Emphasis added.)

Appellants objected to the above line of questioning and moved for mistrial which was denied. The court gave a curative instruction to the jury on its own motion, emphasizing that no insurance company was a party to the action and that the question of insurance was not related to the issue of liability. The court also admonished the prospective jurors that 'the question asked as to whether any of the jurors had stock in certain insurance companies . . . was an improper question when applied to certain specified plaintiffs.' The court then specified those plaintiffs by name.

Appellants argue that this latter admonition of the trial court compounded the claimed error by conveying the idea that the plaintiffs not mentioned were in fact insured. They insist that in view of the closeness of the liability the two errors combined constitute a valid ground for reversal.

Evidence Code, section 1155, ² is a codification of a long established rule that evidence that a party is insured is inadmissible to prove negligence.

Notwithstanding the logic and simplicity of the rule, a totally illogical and unnecessary circumvention was engrafted by case law whereby under the guise of jury voir dire 'counsel may, in good faith, ask prospective jurors whether they are interested in a particular insurance company so long as the question does not unnecessarily convey the impression that defendant is in fact insured. (Citations.)' (Hart v. Wielt (1970) 4 Cal.App.3d 224, 230, 84 Cal.Rptr. 220, 224.) To suggest that such a question can be asked without 'telling' the jury that a party is in fact insured is naivete of the highest order. If lawsuits are not games (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376, 15 Cal.Rptr. 90, 364 P.2d 266), the appellate courts should not be distributors of toys with which counsel can play.

Any lawyer or judge who has observed and/or participated in jury voir dire knows that such questions are asked for one purpose only--to convey the impression that a party is insured.

The evolution of this charade is founded upon the wildest speculation, namely, that an affirmative reply from the prospective juror might lead to a challenge for cause based upon bias. But how would such an affirmative answer, standing alone, display bias? The simple fact is that it would not.

The fallacy of the speculation is immediately evident upon analysis of its rationale which goes like this: if a party is in fact insured and a prospective juror does own stock in an insurance company, that juror is ipso facto biased because a verdict against the insured party will adversely affect the profits of the insurance company in which the juror owns stock; and therefore the juror will be inclined to violate his oath and vote not on the merits of the case, but according to how the verdict might somehow affect the financial structure of an insurance company which in truth may very well not be the insurer of any party to the particular case.

The fallacy has apparently been recognized by bench and bar alike by reason of the absence of any questions regarding insurance in the recently adopted standards for examination of jurors in civil cases. ³ We think it abundantly clear from the foregoing discussion that where an insurance company is not a party, it is improper to ask prospective jurors any questions about ownership of stock or other financial interest in insurance companies.

Here, it is readily apparent that respondent's counsel went even beyond the scope of heretofore permissible inquiry by suggesting 'Well, I don't believe Farmers is involved in this but Firemen's Fund Insurance Group.' This improper statement was compounded by the first part of the trial court's admonition, which inferentially further confirmed that some appellants whose names were not specifically mentioned were in fact insured. We conclude, however, that this error was not prejudicial and further that any error was cured by the court's later admonition.

Whether counsel's improper reference to insurance constitutes prejudicial misconduct in a closely balanced case which cannot be cured by the court's admonition (Hoffman v. Brandt (1966) 65 Cal.2d 549, 554, 55 Cal.Rptr. 417, 421 P.2d 425; Swift v. Winkler (1957) 148 Cal.App.2d 927, 307 P.2d 666; Stevenson v. Link (1954) 128 Cal.App.2d 564, 275 P.2d 782; Curtis v. McAuliffe (1930) 106 Cal.App. 1, 288 P. 675) is determined by the court's view of the overall record, taking into account inter alia the nature and seriousness of the remarks, the good faith of counsel, whether the misconduct...