Walling v. Portland Gas & Coke Co.

• Decision Date: 30 March 1915
• Parties: WALLING v. PORTLAND GAS & COKE CO.
• Court: Oregon Supreme Court

147 P. 399

75 Or. 495

WALLING v. PORTLAND GAS & COKE CO.

Supreme Court of Oregon

March 30, 1915

Department 2.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by W. C. Walling against the Portland Gas & Coke Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for damages for personal injuries suffered by plaintiff, which he alleges occurred substantially as follows: The plaintiff, on the evening of October 25, 1913 was driving an automobile on the Linnton road, going in the direction of the city of Portland; that about 5:30 p. m. he stopped his car on the extreme right or west side of the road, for the purpose of lighting his lamps; that his car was so placed as to leave ample room for other travelers to pass without collision; that while he was so engaged, and standing at the rear of his car, a servant of defendant, driving defendant's car and going in the same direction negligently collided with plaintiff and his car, causing the injuries complained of. Defendant denies any negligence upon its part, and alleges that the injuries were caused by the negligent acts of the plaintiff himself. From a judgment in favor of plaintiff, defendant appeals.

I. N Smith, of Portland (E. V. Littlefield, of Portland, on the brief), for appellant. John Van Zante and A. H. Tanner, both of Portland, for respondent.

BENSON J. (after stating the facts as above).

Dr McCorkle was called as a witness by the defendant, and testified that he had visited plaintiff professionally on two occasions, and gave some evidence as to his condition and the permanency of his injuries. Upon cross-examination the following questions and answers occurred:

"By Mr. Tanner: Q. For whom did you make this examination of Mr. Walling? A. Mr. McDonald called me to see the man. Q. Who is Mr. McDonald? A. He is a friend of mine; I don't know, I think he represents the insurance company here. Q. Did you know for whom you were acting? A. He is the man who called me. Q. What insurance company do you mean? A. I don't know anything about that. Q. Have you been acting for that insurance company in any other cases?"

To the first and last of these questions the defendant objected. The first was overruled, the last was sustained, and the question was not answered. This assignment of error may be considered with assignment No. 5, which is that when Mr. Van Zante, counsel for plaintiff, was addressing the jury he used this language, "We also have the testimony of Dr. McCorkle, who is the physician for the insurance company," which was excepted to by defendant's counsel, who then asked the court to withdraw the case from the jury on account of the prejudice arising from the language used. The court denied the request, but instructed the jury quite clearly that there was no question of insurance to be considered by them, and that there was no evidence that defendant was in any way protected by insurance. It has been repeatedly held by this court that a willful attempt by a plaintiff in a personal injury case to get before the jury the fact that defendant is protected by indemnity insurance is reversible error. Tuohy v. Columbia Steel Co., 61 Or. 531, 122 P. 36; Putman v. Pacific Monthly Co., 68 Or. 36, 130 P. 986, 136 P. 835, 45 L. R. A. (N. S.) 338; Cameron v. Pacific Lime & G. Co., 144 P. 446. However, as is well said by Mr. Justice McBride, in the case of Tuohy v. Columbia Steel Co., supra:

"But the rule is not universal. * * * The witness was an attorney, and the fact that as such, and acting for an insurance company, he had procured a statement from a prospective witness in regard to certain facts, was admissible to show his motive and interest in the case."

In the case at bar, a physician who had not been called by plai...