Shay v. Horr

• Citation: 139 P. 604,78 Wash. 667
• Court: United States State Supreme Court of Washington
• Decision Date: 26 March 1914
• Parties: SHAY v. HORR.

139 P. 604

78 Wash. 667

SHAY v. HORR.

Supreme Court of Washington

March 26, 1914

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Anel B. Shay against L. G. Horr. From a judgment for plaintiff, defendant appeals. Reversed.

Ballinger Battle, Hulbert & Shorts and Clise & Poe, all of Seattle, for appellant.

H. S Elliott and Walter S. Fulton, both of Seattle, for respondent.

MORRIS J.

Respondent while riding a motorcycle, collided with an automobile owned and driven by appellant, receiving injuries for which this action was brought. He recovered a judgment for $11,014.83, from which this appeal is taken.

Many errors are assigned. One of these is so decisive of the appeal that we will not discuss the others. In opinion the case to the jury Mr. Fulton, counsel for respondent, among other things said:

'We will show you that Mr. Hawkinson went to him [defendant] about two or three weeks afterwards, to Mr. Horr, the police officer did, to find out about this case, and he charged Mr. Horr with it, and Horr said: 'Well, I can't do anything about it. The insurance company has instructed me not to.' And we will show you that in the hospital Horr made the statement, in the presence of Mr. Shay, and after to Mr. Shary----

'Mr. Battle: I desire to except to the remarks of counsel--anything in reference to any insurance proposition.

'The Court: I think the objection is well taken. The jury will disregard any statement of that kind. It has nothing to do with the case.'

Later on Mr. Fulton said to the jury:

'Now, we will show that Mr. Horr the next day went to Mr. Schubach's office and there made the statement that he was to blame, and the matter was out of his control.

'Mr. Battle: The same exception to the remarks of counsel,' to which no ruling is made.

Subsequently the witness Hawkinson, referred to by Mr. Fulton, was sworn. Among other questions he was asked:

'What conversation, if any, did you have with him [defendant] at that time? Just state the conversation as nearly as you can to the jury. Answer: He said he belonged to the insurance--some insurance company.

'Mr. Battle: I object and move to strike it out.

'The Court: Motion denied; exception allowed.

'Q. Now, I want you to state just as nearly as you can recall what conversation you had with Mr. Horr relative to this matter, when you went down to see him two or three weeks after. A. I asked him if he had done anything for the boy, or if he had seen him, and he said he left it in the hands of the insurance company, and they told him not to bother with the case at all.

'Mr. Battle: We move to strike out the answer of the witness as incompetent, irrelevant, and immaterial and prejudicial error.

'The Court: Motion denied, and exception allowed.'

Later on the witness was asked:

'But you say when you went in you asked him if he would settle with the boy? A. I asked him if he had done anything for the boy at all. I didn't ask him about any settlement at all. He said, 'No, he had insurance.'

'Mr. Battle: I move to strike the answer as not responsive to the question.'

This motion was granted by the court. Another witness testified that he had had a conversation with Mr. Horr relative to this accident, and he was then asked: 'State just what he said relative to it. A. He told me that he was insured,' to which objection was made and sustained. He was then asked what he said in reference to the accident, and answered: '* * * Regardless of what the insurance company would do, he wanted to do something.' Objection was again made by counsel for appellant, and, after some controversy between the court and the counsel, the court finally said to the jury: 'I instruct the jury now any admissions in reference to the insurance company has nothing to do with this case, and I have only admitted it for the purpose, as I have already said, where it appears it was so interlaced with the other admissions that I couldn't exclude it.'

It is evident that, notwithstanding the rulings of the court counsel for respondent and his witnesses intended the jury should fully realize that appellant was protected by some form of insurance. That their...