Warner v. Maus

• Decision Date: 12 December 1956
• Citation: 304 P.2d 423,209 Or. 529
• Parties: Leona WARNER, Appellant, v. Solomon MAUS and Warren G. Fleming, Respondents.
• Court: Oregon Supreme Court

Page 423

304 P.2d 423

209 Or. 529

Leona WARNER, Appellant, v. Solomon MAUS and Warren G. Fleming, Respondents.

Supreme Court of Oregon.

Argued and Submitted Sept. 20, 1956.

Decided Dec. 12, 1956.

Ray G. Brown, Portland, argued the cause and filed briefs for appellant.

H. H. Phillips, Portland, argued the cause for respondent Solomon Maus. With him on the brief were David H. Fertig, Phillips, Coughlin, Buell & Phillips, Portland. Homer L. Allen, Portland, filed a brief for respondent Warren G. Fleming.

Before WARNER, C. J., and ROSSMAN, LUSK, BRAND, PERRY and McALLISTER, JJ.

McALLISTER, Justice.

This is an action to recover damages for personal injuries suffered by the plaintiff in an automobile accident. There were two defendants. At the conclusion of the evidence for the plaintiff, the defendant Fleming moved for a non-suit. Plaintiff joined in the motion and it was granted. Thereafter, the jury returned its verdict in favor of the defendant Maus and from the judgment entered upon the verdict, plaintiff appeals.

On the morning of November 13, 1952, the plaintiff, Mrs. Leona Warner, was a passenger in an automobile driven by her husband which was proceeding west on southwest Madison street in the city of Portland. In the intersection of southwest Madison with southwest Front avenue, the car in which plaintiff was riding was involved in a collision with a pickup truck driven by defendant Maus, which entered the intersection on Front avenue from the north and Mrs. Warner was injured as a result of said collision.

For the purpose of this opinion it is unnecessary to review the evidence indicating which driver was at fault. It is sufficient to say that traffic at the intersection was controlled by traffic control signal lights and that each driver accused the other of having entered the intersection against a red light. This question, obviously the controlling one in the case, was resolved by the jury against plaintiff.

We find it necessary to notice but one of the eight alleged errors assigned by plaintiff in her brief. This relates to questions asked of the witness John C. Warner, the husband of the plaintiff, on cross-examination by counsel for defendant Maus. Believing the error to be clearly prejudicial, we take notice of it notwithstanding the fact that counsel for plaintiff has included it as a part of an assignment of error based on the denial of a motion for a new trial. It should not be necessary to repeat what this court has so often held, that the denial of a motion for a new trial for alleged errors committed on the trial and appearing in the record thereof is not reviewable on appeal. But in view of the fact that counsel for plaintiff made repeated objections during the cross-examination complained of and the further fact that the record in this regard is fully set forth in the brief, we feel justified in considering the error as though it had been properly assigned.

During the cross-examination of the witness John C. Warner, the following occurred:

'Q. Since 1936 Mr. Fleming, you have been involved in ten automobile accidents, haven't you? A. The name is Warner.

'Q. Since 1936 you have been involved in ten automobile accidents haven't you? A. I don't know.

'Mr. Brown: That is objected to, your Honor, and we move that the jury be instructed to disregard such inferences as that.

'Mr. Buell: Well, I think I am entitled to go into the question of that, your Honor, with regard to whether or not Mr. Warner----

'You said Mr. Warner.

'Mr. Buell: That is what I said, Mr. Warner. This is Mr. Warner.

'The Court: Well, if it can be shown that Mr. Warner was in the accidents and was injured, why that would be admissible. Otherwise, it would be inadmissible and you would be entitled to have it stricken. Well, I think maybe in its present form that it is subject to objection. The question is, was he involved in any accidents in which Mrs. Warner was in the car.

'Mr. Buell: I will rephrase the question.

'The Court: Ladies and gentlemen of the jury, you will disregard the questions of counsel with respect to the witness being involved in other accidents. You may proceed.

'Q. (by Mr. Buell) Mr. Warner, was Mr. Warner a passenger in your car in any of the other automobile accidents in which you have been involved? A. No.

'Q. None? A. None.

'Q. You are sure of that, sir? A. I am sure.

'Q. She drives a car, does she? A. Yes.

'Q. Has she ever had any accidents while driving your car herself that you know of?

'Mr. Brown: This is objected to, Your Honor. It must be directed to previous injuries and not how people drove on some other occasions. Once again, I move, Your Honor, for an order directing the jury to disregard this line of questioning. If counsel persists, I shall immediately move for a mistrial.

'Mr. Buell: Well, I asked the same question that I have been permitted to ask Mr. Warner referring to Mrs. Warner alone.

'The Court: Well, I think it would have to be tied up with injuries, Mr. Buell. If she had accidents and no injury was involved, it would be of no assistance in resolving any question of fact.

'Mr. Buell: Of course, we have never had the opportunity to question Mr. Warner before this time.

'The Court: I appreciate that fact, but you may question him now upon matters which would be pertinent and not otherwise. Ladies and gentlemen of the jury, you will disregard counsel's * * * I think that is unnecessary. You may proceed.

'Q. And you are quite sure, of course, that she was never injured in any accident in which you were involved?

'Mr. Brown: That is objected to again, Your Honor.

'The Court: Well, I will overrule the objection.

'Q. (by Mr. Buell) You are sure?

'The Court: You may answer. What was the question? Read the question. (The question was read.)

'The Court: Well, I didn't sense the objection. It must be limited...