Smith v. Knutson

• Decision Date: 11 April 1951
• Docket Number: No. 7187,7187
• Citation: 47 N.W.2d 537,78 N.D. 43
• Parties: SMITH v. KNUTSON et al.
• Court: North Dakota Supreme Court

Page 537

47 N.W.2d 537

78 N.D. 43

SMITH v. KNUTSON et al.

No. 7187.

Supreme Court of North Dakota.

April 11, 1951.

Syllabus by the Court.

1. A voluntary, unresponsive, unrelated statement about the general use of insurance made by a prospective juror in a damage action on his examination on voir dire is of itself harmless and not within the rule prohibiting improper reference to insurance in such cases. Such remark alone does not require that any caution or instruction regarding it be given to the jury by the court.

2. A voluntary, unresponsive, incidental remark about insurance made by a prospective juror in a damage action on his examination on voir dire, which is allowed to pass without any further reference to insurance by counsel, witnesses or court, is not a ground for a mistrial.

3. The general objection that evidence is incompetent, irrelevant and immaterial fails to point out the particular objection to the evidence and is properly overruled if the evidence is admissible for any purpose.

4. Evidence of alterations in the apparatus claimed to have caused an accident made after the date of the accident is admissible in rebuttal or when bearing on the credibility of a witness.

5. When a trial court in his memorandum decision grants a new trial on other grounds than the insufficiency of the evidence and makes no reference to the evidence it will be presumed that the trial court found that the insufficiency of the evidence was not a ground for a new trial. Sec. 28-1906, NDRC 1943.

Day, Lundberg, Stokes, Vaaler & Gillig, Grand Forks, for appellant.

Philip R. Bangs, Grand Forks, for respondents.

GRIMSON, Judge.

Plaintiff brought this action to recover damages for the death of her son, Lloyd Smith, alleged to have been caused by the negligence of the defendants. The defendants interposed an answer denying liability and setting forth certain defenses to the action. The issues formed by the pleadings were tried to a jury. At the close of the case a motion by the defendants for a directed verdict was denied. The jury returned a verdict for the plaintiff. Thereafter the defendants made a motion for judgment notwithstanding the verdict or in the alternative a new trial. The district court granted the defendants' motion for judgment notwithstanding the verdict and ordered judgment for the defendants for a dismissal of the action. The defendants appealed from that judgment and this court held that the trial court was in error in rendering judgment notwithstanding the verdict but further held that inasmuch as the alternative motion for a new trial had not been determined the defendants were granted leave to renew their application for a new trial in the district court within thirty days of the date for filing remittitur. Smith v. Knutson, N.D., 36 N.W.2d 323. After remand the defendants duly presented their motion for a new trial. The trial court granted the motion and the plaintiff has appealed from the order for a new trial.

The motion for a new trial was based upon the following grounds: That the motion of the defendants for a mistrial should have been granted; that the court erred in his instructions to the jury; that errors in law occurred at the trial and were excepted to by the defendants; that the evidence is insufficient to justify the verdict; that the verdict is against the law; that the evidence is of such character that the verdict should be set aside as a matter of discretion and that excessive damages were awarded.

The district court granted a new trial on the grounds as stated in his memorandum opinion: 'That this court was in error when it refused to either advise or instruct the jury that there was no insurance carried by defendants, or any of them, which would protect them in an action of this character, and that the court was in error when it refused to grant defendants' motion for mistrial made at the conclusion of the trial.'

This ruling is based upon an occurrence that took place during the examination of the prospective jurors. No record was made of that occurrence but after the jury was selected Mr. Bangs, the defendants' attorney, out of the presence of the jury, made the following record:

'During the examination of the prospective jurors for this trial, which examination was had Thursday afternoon, the 26th. Mr. Lundberg, as attorney for the plaintiff, asked the question of Mrs. Harry Reff whether or not she had any prejudices regarding this type of an action, to which she answered, 'No,' and then voluntarily stated that she understood that in this type of case there was usually insurance. The examination of the jurors continued without any further reference being made to insurance, and a jury was finally empanelled and sworn to try the case, which empanelled jury consists of jurors who were present in court at the time the above statement was made, and either actually heard the statement or were in a position to hear it.

'At this time the defendants ask permission to introduce sworn testimony to prove that there is absolutely no insurance involved in this lawsuit, or no insurance that in any way protects the defendants, or any of them, in this lawsuit. And if that proof is made the defendants will then request the court to, by proper warning or instructions, notify the jury that there is no insurance involved in this lawsuit. And if the court fails to comply with the request, the defendants will move for a mistrial. * * *'

The testimony of the defendants, Arthur Knutson and Theodore Knutson was then taken, out of the presence of the jury, to the effect that they had no insurance covering an accident of this kind.

Then counsel for defendants said: 'We feel that when the juror, Mrs. Reff, volunteered the statement that she did, that has been mentioned, it was heard undoubtedly by other jurors who are now seated in this case, and that we are entitled to have the jury instructed or advised by the court that there is absolutely no insurance involved in this case, no insurance that protects any of the defendants. And failure on the part of the court at sometime during this trial to so advise or instruct the jury will make it necessary for the defendants to move for a mistrial. As I understand it, the court is not deciding the matter immediately.'

Counsel for plaintiff objected to having the jury advised along the lines suggested, saying: 'We believe it would give the defendants an undue advantage in establishing the fact which is immaterial and irrelevant and has not been injected into the action by any act of the plaintiff and furthermore, the record shows that the objecting counsel did not strike the jury (juror) who volunteered this statement under the peremptory rights which the record will show he possessed and could have availed himself of, and there is no evidence that any significance was attached to the casual remark by other jurors. I might say that we would not object to the court stating in a general way that the matter of insurance was not at issue and should be disregarded, providing it is done in such a way as to not attach undue significance either way.'

Counsel for defendants opposed an instruction along that line 'for the reason it carries with it the intimation that there is insurance, and that is exactly what we are trying to avoid.' The Court: 'The ruling on both the motion and the objection to the motion will be reserved at this time.'

It will be noticed that no misconduct is shown or claimed upon the part of the plaintiff's attorney in this connection. The question he asked was perfectly proper. He consented to an instruction which if worded along the line he suggested might have been proper. That remark of the juror was not a direct statement that there was insurance involved in this particular case. Ordinarily voluntary, unresponsive, incidental statements of this kind are held to be an exception to the general rule prohibiting improper reference to insurance. 105 A.L.R.Annotation p. 1327; Meinecke v. International Transp. Co., 101 Mont. 315, 55 P.2d 680. A reference to insurance which leaves in doubt what kind of insurance or whose insurance is meant is generally regarded as harmless. 4 A.L.R.2d Annotation Sec. 22, p. 819 and cases cited.

The action of counsel and court were in accordance with those assumptions. Plaintiff's counsel did not try to take any advantage of the remark. Defendants' counsel wisely refrained from making any objection in the presence of the jury. The incident was allowed to pass as a casual remark with no relation to the case. An objection by counsel and action by the court by way of instruction or otherwise would have brought the matter of insurance before the jury much more definitely than would this remark. To the credit of counsel and court the matter was handled in the manner most likely to avoid prejudice. Under the circumstances no prejudice can be presumed to have resulted from that single, voluntary remark of the juror. There was no evidence before the jury which warranted the giving of the instruction requested. Instructions should be confined to issues presented by the evidence. Pease v. Magill, 17 N.D. 166, 115 N.W. 260; Foster v. Dwire, 51 N.D. 581, 199 N.W. 1017, 51 A.L.R. 21.

Furthermore, no written instruction was submitted as provided by Sec. 28-1412, NDRC 1943, and this court held in Carr v. Minneapolis, St. P. & S. St. M. Ry. Co., 16 N.D. 217, 112 N.W. 972, 973, that it was not error to refuse a request orally made 'by reason of its not having been submitted to the court in writing'.

The court covered the incident of this voluntary remark as well as it could be covered under the circumstances of the case when he instructed the jury as follows: 'You should give all the testimony in this case just and fair weight. You have no right to go outside of the evidence and look for any theory on which to build a verdict one way or the other.' (Italics ours.)

After the case had been submitted to the...