Wells v. Morrison

• Decision Date: 24 May 1927
• Citation: 121 Or. 604,256 P. 641
• Parties: WELLS v. MORRISON et al. [*]
• Court: Oregon Supreme Court

256 P. 641

121 Or. 604

WELLS v. MORRISON et al. ^[*]

Supreme Court of Oregon

May 24, 1927

Appeal from Circuit Court, Hood River County; Fred W Wilson, Judge.

Action by Edward L. Wells against M.M. Morrison and another. Judgment for plaintiff, and defendants appeal. Affirmed.

This is an appeal from a judgment in the sum of $666, awarded to plaintiff as damages for the destruction of his automobile arising from the negligence of the defendants in the operation of a stage.

Defendant Jaloff owned and operated a motorcar as a common carrier over the Columbia River Highway between The Dalles and Portland Or., and defendant Morrison was his chauffeur, and, as such, in actual control of the car. On August 17, 1924, Clifford A. Wells, brother of plaintiff, was driving plaintiff's Essex touring car from Portland to Hood River, and the stage was traveling from The Dalles to Portland. The Stevenson Ferry road intersects the Columbia Highway at a point just east of Cascade Locks. When Wells had reached this point, he saw a sedan approach the highway from the north and turn toward the west. At or about the same time, he saw the stage on the highway, approaching from the east at a high rate of speed, and, perceiving that the stage was attempting to pass the sedan, he pulled off to his right, leaving the pavement in the clear. The driver of the stage, in his attempt to pass the sedan, pulled so far to his left that he collided with the Wells car, inflicting personal injuries upon its passengers and utterly demolishing the car.

Samuel B. Weinstein, of Portland (S.J. Silverman, of Portland, on the brief), for appellants.

George R. Wilbur, of Hood River, for respondent.

BROWN, J. (after stating the facts as above).

This appeal raises but one principal question. That question involves the evidence adduced by plaintiff, to the effect that the defendants were protected by indemnity insurance.

The record discloses that, on plaintiff's cross-examination he testified, in response to counsel's inquiry, that he had had a conversation with defendant Jaloff on the day after the accident. On his redirect examination, he testified as follows:

"Q. You had a talk with Mr. Jaloff? A. Yes, sir.

"Q. What was said at that conversation? A. Well, I went to see Mr. Jaloff in regard to the wrecking of my car the next day after the accident. ***

"Q. What was said by Mr. Jaloff concerning the accident? A. We were discussing the accident and I asked him what he was going to do about paying for the car, and he said, 'Well, Mr. Wells, while we think the third party was partly the cause of this accident,' he says, 'we are responsible for your car;' and he says, 'Our insurance will have to take care of your car.' He says: 'I am insured, and it does not cost me; it is the insurance company that will have to pay this bill.' "

After this testimony was in the record, defendants' counsel said:

"If the court please, I at this time ask that the case be dismissed and the jury be discharged.

"The Court: That testimony, gentlemen of the jury, with reference to any conversation about insurance, about the car being insured, is stricken from the record, taken from the case, and must not, under any circumstances, be considered by you in arriving at your verdict. I want this made very clear and distinct to you: That any statement with reference to any insurance on the car, or anybody else having to pay on account of that insurance, is taken away from the case and stricken out, and under no circumstances must you in your deliberations consider that, or in any way take it into consideration.

"Mr. Silverman: If the court please, I again wish, for the purpose of the record, to object to all of this testimony and to ask the court that this case be announced as a mistrial, and that the jury be discharged from the further hearing of this case.

"The Court: You have already made that motion, and I have ruled upon it."

There is no hard and fast rule that requires the court to penalize a plaintiff by directing a mistrial because evidence that the defendant is protected by indemnity insurance has gotten to the jury. However, this court has repeatedly held that, where the plaintiff in a personal injury case by questionable practice gets before the jury the fact that the defendant is protected by indemnity insurance, upon proper application the trial court should penalize him by directing a mistrial. Tuohy v. Columbia Steel Co., 61 Or. 527, 531, 122 P. 36; Putnam v. Pacific Monthly Co., 68 Or. 36, 130 P. 986, 136 P. 835, 45 L.R.A. (N.S.) 338, L.R.A. 1915F, 782, Ann.Cas.1915C, 256; Cameron v. Pacific Lime & G. Co., 73 Or. 510, 144 P. 446, Ann.Cas.1916E, 769; Vasquez v. Pettit, 74 Or. 496, 145 P. 1066, Ann.Cas.1917A, 439; Walling v. Portland Gas & Coke Co., 75 Or. 495, 147 P. 399; Sanders v. Taber, 79 Or. 522, 155 P. 1194; Jones v. Sinsheimer, 107 Or. 491, 214 P. 375; Lidfors v. Pflaum, 115 Or. 142, 205 P. 277, 236 P. 1059; Coblentz v. Jaloff, 115 Or. 656, 239 P. 825; Rosumny v. Marks, 118 Or. 248, 246 P. 723; Ross v. Willamette V.T. Co. (Or.) 248 P. 1088; Melcher v. Connell (Or.) 250 P. 742.

It will remembered that, when the plaintiff testified in chief, there was no intimation that he had had a conversation with defendant Jaloff, but, after the subject of the conversation had been opened by defendants' counsel on cross-examination, in his redirect examination plaintiff's counsel sought to prove this defendant's declaration against interest. See Oregon Laws, § 727, subd. 2.

Our statute provides that, when part of a conversation is given in evidence, the whole conversation on the same subject may be given. This, however, is conditioned upon the competency and materiality of the remainder of the conversation. State v. Mack, 57 Or. 565, 112 P. 1079; Richey v. Robertson, 86 Or. 525, 169 P. 99; State v. Weston, 109 Or. 19, 219 P. 180.

That part of this plaintiff's testimony relating to the insurance on his car had no tendency to prove any issues in the cause, and was promptly and properly stricken from the record, and the jury instructed to refrain from considering the same while deliberating upon their verdict.

In their brief, the defendants cite Tuohy v. Columbia Steel Co., 61 Or. 527, 122 P. 36, as the leading Oregon case on this point. From the opinion in that case, we quote:

"It has been frequently held that a willful attempt by a plaintiff in a personal injury case to show that the defendant was protected by insurance constitutes reversible error. *** But the rule is not universal."

There is no evidence in the record of this case that tends to show a willful attempt upon the part of plaintiff to adduce incompetent evidence upon the trial of the cause. The inquiry put to the witness was competent, and the witness answered it without objection. The witness was a layman, a farmer, and ought not to be condemned because he was not familiar with the rules of evidence. As to when and under what circumstances a party should be penalized, as sought by the defendants in this case, Mr. Justice Chadwick, in Jensen v. Schlenz, 89 Wash. 268, 154 P. 159, says:

"The extent of our holding is that, if it be apparent that counsel deliberately sets about, although in an indirect way, to inform the jury that the loss, if any, will fall upon an insurance company instead of the defendant, his conduct will be held prejudicial. *** If such information comes about naturally and is an incident to a lawful inquiry, there can be no error. If it is injected in a collateral way, it is held to be harmful. The gravamen of the offense is not in the disclosure of a collateral fact, but in the manner of its disclosure, that is, the misconduct of counsel."

The defendants' contention is fully met by this court in the case of Melcher v. Connell (Or.) 250 P. 742, a case wherein the testimony developed the fact that the defendant was insured. In that case, Mr. Justice Rand, speaking for the court, said:

"The question propounded to the witness was a pertinent and proper one and did not call for any improper response by the witness. His reference to the insurance company was not elicited by plaintiff's counsel, but was volunteered by the witness himself, without any fault or prearrangement of plaintiff. The court very promptly instructed the jury to disregard that part of the answer. The injuries sustained by the plaintiff were very substantial, the verdict was not excessive, and we cannot find in the record anything tending to show that the jury was improperly influenced, or in any way prejudiced by the unwarranted and unsolicited statement of the witness, or anything else occurring upon the trial sufficient to bring the case within the operation of the rule followed in the cases cited by defendant. Since the jury was instructed by the court to disregard the improper statement, the case more properly falls within the rule announced and followed in Jones v. Sinsheimer, 107 Or. 491, 495, 214 P. 375, and Coblentz v. Jaloff, 115 Or. 656, 664, 239 [121 Or. 610] P. 825. For that reason, no other error being assigned, the judgment will be affirmed."

From a careful perusal of the record in this case, the writer is constrained to believe that the verdict rendered herein is not the result of passion or of prejudice, but that it is the finding of a jury upon a fair and impartial trial.

It is a general rule that, where the record does not clearly establish that the finding of the jury is contrary to the instructions of the court when considered as a whole, the presumption prevails that the jury followed the charge, and that the verdict is right. Western Grain Co. v. Beaver Land-Stock Co. (Or.) 253 P. 539; Aetna Indemnity Co v. J.R. Crowe Coal & Mining Co. (C.C.A.) 154 F. 545; Gregory v. Morris, 96...