Opinion
No. 7,656.
Submitted May 10, 1937.
Decided June 1, 1937.
Personal Injuries — Automobile Accident — Appeal and Error — Diminution of Record on Appeal — When Proper — Injection of Matter of Liability Insurance into the Case — Harmless Error — Costs of Preparation of Supplemental Transcript on Motion for Diminution of Record — When Properly Chargeable to Respondent on Affirmance of Judgment. Appeal and Error — Diminution of Record on Appeal — When Proper. 1. Since a trial court may not be put in error on a partial record, the respondent in an appeal case may under Rule IV, subdivision 4 of the Rules of the Supreme Court, suggest a diminution of the record, and where consideration of the omitted matter is essential for a proper determination of the alleged error, the motion for diminution will be granted. Same — Personal Injuries — Automobile Accident — Injection of Matter of Liability Insurance into Case — Diminution of Record to Show Voir Dire Examination of Jury Allowed. 2. Under the above rule, held that where, in an automobile accident case, the error complained of had to do with the alleged improper injection of the question of liability insurance into the case, presenting incidentally the question as to which one of the parties first brought the matter to the attention of the jury, diminution of the record by presenting the voir dire examination showing that appellant's attorney himself did so, allowed. Personal Injuries — Automobile Accident — Injection of Liability Insurance Alleged as Error — Circumstances Under Which Error Harmless. 3. Where, in a personal injury action based on an automobile accident, after counsel for defendant had advised court and jury that his client was insured against liability and questioned the jurymen as to whether they had any bias or prejudice against insurance companies, plaintiff's counsel elicited from his client that defendant had said that "he would have liked to see me get it [the amount sued for in a former trial] from the insurance company," the incident, if error, held harmless, counsel for defendant having first injected the objectionable matter into the case, particularly so in view of the fact that the trial court advised the jury that the matter of insurance was not to be considered by them. Same — Diminution of Record — When Cost Incident to Preparation of Supplemental Transcript Properly Chargeable to Respondent on Affirmance of Judgment. 4. Where the respondent failed to have the voir dire examination of the jury (necessary to a decision of the case) included in the settled bill of exceptions, necessitating the preparation of a supplemental transcript on his application for diminution of the record, the expense incident thereto held properly chargeable to respondent on affirmance of the judgment.
Appeal from First District Court, Lewis and Clark County; A.J. Horsky, Judge.
Messrs. Speer Hoffman for Appellant, submitted a brief; Mr. Harvey B. Hoffman argued the cause orally.
Mr. Lester H. Loble and Mr. Hugh R. Adair, for Respondent, submitted a brief; Mr. Adair argued the cause orally.
Our position is that the subject of insurance is fatal in this case because it was used by counsel for the plaintiff both in an illegitimate manner and for an illegitimate purpose; it was introduced under a pretension by plaintiff's counsel that an admission of liability was forthcoming, but when plaintiff's counsel concluded the matter it appears that the insurance feature was not unequivocally a part of an admission of liability or actually incidental to or connected with an admission of liability within the rules established by this court. ( Vonault v. O'Rourke, 97 Mont. 92, 33 P.2d 535; Tanner v. Smith, 97 Mont. 229, 33 P.2d 547; Robinson v. Woolworth Co., 80 Mont. 431, 261 P. 253; Wilson v. Thurston Co., 82 Mont. 492, 267 P. 801; Wilson v. Blair, 65 Mont. 155, 211 P. 289, 27 A.L.R. 1235.) Neither can it be contended by counsel for respondent that the matter of insurance, particularly the defendant's desire that the insurance company pay, comes within such exceptions as noted in Meinecke v. Intermountain Transp. Co., 101 Mont. 315, 55 P.2d 680, or within any of the other exceptions noted by the courts.
The following cases support the rule recognized by this court that in actions for personal injuries, the fact that the defendant is protected by indemnity insurance against liability for damages cannot, directly or indirectly, be injected into the case by evidence, argument, or remarks, so as to influence the jury, and the violation thereof is ordinarily held to be reversible error: Trevillian v. Boswell, 241 Ky. 237, 43 S.W.2d 715; Whitman v. Carver, (Mo.) 88 S.W.2d 885; Culp v. Repper, 78 F.2d 221, 64 App. D.C. 337; Morton v. Holaday, 121 Fla. 813, 164 So. 514; Cannon v. Brown, 142 Kan. 700, 51 P.2d 1007; Janse v. Haywood, 270 Mich. 632, 259 N.W. 347; Fielding v. Publix Cars, 130 Neb. 576, 265 N.W. 726, 105 A.L.R. 1306; Hoge v. Soissons, 48 Ohio App. 221, 192 N.E. 860; Texas Co. v. Betterton, (Tex.Com.App.) 88 S.W.2d 1039; Lanham v. Bond, 157 Va. 167, 160 S.E. 89; Rising v. Veatch, 117 Cal.App. 404, 3 P.2d 1023; Crossler v. Safeway Stores, 51 Idaho, 413, 6 P.2d 151, 80 A.L.R. 463; Fleming v. Hartrick, 105 W. Va. 135, 141 S.E. 628; Poland v. Dunbar, 130 Me. 447, 157 A. 381; Hutchinson v. Knowles, (Vt.) 184 A. 705; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Ryan v. Barrett, 105 Vt. 21, 162 A. 793; Rutherford v. Gilchrist, 218 Iowa, 1169, 255 N.W. 516; Coffman v. Shearer, 140 Kan. 176, 34 P.2d 97.
The precise question presented to the court in this case is unique. The vice in the error assigned lies not so much in the mere fact that the particular evidence in the end emphasizes the matter of insurance, but the deliberate studied method of overemphasizing the insurance element by inducting into the jury's mind not only that the defendant had concluded that the damages from plaintiff's personal injuries were greater, but that it was his own desire that the insurance company be made to respond by a verdict against himself and for the plaintiff in this action. There is not a single attending circumstance developed in the evidence objected to that presents a single excuse for counsel for the plaintiff building the record objected to as he did. There are only two things in the evidence, to-wit: the conclusion of the defendant as to the magnitude of the personal injuries, his sorrow for the plaintiff and his personal desire that she be reimbursed in proportion to his conclusion as to her damages by the insurance company. If insurance ever can be lugged before the jury in a prejudicial way, we respectfully submit that this record discloses having done so in a deliberate premeditated plan to present the matter as prejudicially as possible.
Defendant urges "that the subject of insurance is fatal in this case" and that it is prejudicial error for plaintiff's counsel to pursue a fact or subject which was first introduced and injected into the case by defendant. We have found no authorities sustaining such contention, for it is well settled that where the defendant himself first brings up the matter of insurance, he thereby injects a new issue, opens up a new field and waives any right which he otherwise would have had to object to the introduction of such fact or issue in the case. ( Pascoe v. Nelson, 52 Mont. 405, 158 P. 317; Stehouwer v. Lewis, 249 Mich. 76, 227 N.W. 759, 74 A.L.R. 844; Zarafonitis v. Yellow Cab Co., 127 Cal.App. 607, 16 P.2d 141; Hines v. Foster, 166 Wn. 165, 6 P.2d 597; Noble v. Bacon, 129 Cal.App. 177, 18 P.2d 699; Willhite v. Freed, 137 Or. 1, 299 P. 691; Sims v. Martin, 33 Ga. App. 486, 126 S.E. 872; Ward v. Teller Reservoir Irr. Co., 60 Colo. 47, 153 P. 219; Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792; Hemsworth v. Shoemaker, 145 Wn. 520, 261 P. 84; Lally v. Morris, (Mo.App.) 26 S.W.2d 52; Wulze v. Aquardo, (Mo.App.) 6 S.W.2d 1017; Pemberton v. Fritts, 56 S.D. 374, 228 N.W. 409; Schoenfelder v. Pope, 10 N.J. Misc. 247.)
Even though the subject of insurance had been introduced into the case by plaintiff (which assumption is contrary to the facts), still it would have been incumbent upon defendant to thereupon and immediately ask for a mistrial. (Anderson on Automobile Accident Suits, sec. 493, p. 563; Pascoe v. Nelson; Hines v. Foster; Noble v. Bacon, supra.)
This is an appeal from a judgment of the district court of Lewis and Clark county in an action for damages for personal injuries sustained in an automobile collision. Judgment was for plaintiff after verdict of a jury. Motion for new trial was denied and appeal from the judgment perfected.
Briefly stated, the facts are as follows: Gladys Francis, plaintiff and respondent, was riding as a guest in an automobile driven by a friend. On the evening of the accident this car with four passengers, including the plaintiff, was proceeding eastward on the public highway on what is known as the "East Helena Road." As it approached a driveway leading from a nearby ranch house to the highway, a car driven by defendant, appellant, came onto the highway from this side road and a collision occurred, with the resulting injuries to plaintiff. A more elaborate statement of the facts and details of the accident is unnecessary, in view of the limited scope of the assignments of error.
Appellant urges four assignments of error, all of which involve alleged misconduct of respondent's attorney in introducing the matter of insurance into the case.
Before proceeding to dispose of the assigned errors, we find it necessary to consider a question of appellate practice. In the course of this appeal respondent gave notice to appellant, in accordance with Rule IV of our court rules, of a petition for a suggested diminution of the record. Appellant, through newly employed counsel, served and filed objections to the petition. Hearing on the application was continued until the day of the hearing of this appeal, and all matters were presented together. The suggested diminution consists of a supplemental transcript containing the proceedings on impaneling and voir dire examination of jurors. Since the allowance of the diminution would likely cause the decision to go one way, and its disallowance the opposite, it becomes necessary to rule upon the application at the outset.
Supreme Court Rule No. IV, section 4 (101 Mont. xx), provides [1, 2] for suggestion of diminution of the record by either appellant or respondent. The part applicable here reads as follows: "Respondent may likewise make suggestion of diminution of record in any respect he may deem necessary; whereupon if the suggestion appears to be proper, an order will be made requiring such parts of the record suggested to be certified up by the lower court." The proposed supplemental transcript has already been certified up by the district court, and all that now remains to make it a part of the record on appeal is permission to make a formal filing of it.
It appears to us that the disposal of the assignments of error is so vitally dependent upon, and interwoven with, the proceedings in the selection of jurors, that we cannot with fairness to either the litigants or the trial court decide the appeal without having for consideration a record of the voir dire examination. The suggested diminution appears not only proper under the rules of this court, but actually indispensable to a proper consideration of the appeal.
The proposition that an appellate court will not put a trial court in error on a partial record is so fundamental that a citation of authorities is hardly necessary. We call attention, however, to a few pertinent rules stated by textwriters and adopted by courts. In 3 American Jurisprudence, section 692, page 285, there appears the following: "When appellant brings up enough of the record to show prejudicial error, appellee must, if the error can be overcome by consideration of another part of the record, take the proper steps to enable the court to examine the entire record." 4 C.J.S., Appeal and Error, section 1154, page 1638, states the matter thus: "For a question to be reviewed, the record or the requisite part thereof must contain or set forth such matters relating thereto as will enable the court to determine whether or not there is error in respect thereto. The error complained of must be founded on, or borne out by, the record, which should be in such form as to enable the court to determine the error complained of." It is also interesting to note that "certiorari is sometimes awarded by the court of its own motion for its own satisfaction in order to enable it to affirm a judgment, but never to supply matter to enable the court to reverse a judgment." (4 C.J.S., Appeal and Error, sec. 1135, subsec. c, p. 1613; see generally on the subject, Glavin v. Lane, 29 Mont. 228, 74 P. 406; Featherman v. Granite County, 28 Mont. 462, 72 P. 972; 4 C.J.S., Appeal and Error, sec. 1133 et seq., p. 1609; 3 Am. Jur., sec. 683 et seq., p. 280; 2 R.C.L., sec. 130, p. 154.)
The petition for the diminution of the record is therefore granted, and the supplemental transcript will be considered in the determination of this appeal.
Appellant bases a claim of reversible error upon the ground [3] that respondent's counsel improperly and prejudicially brought before the jury the fact that defendant was protected by indemnity insurance. The objectionable matter arose in this manner: Plaintiff's counsel was examining her with regard to a certain conversation had with the defendant subsequent to a former trial involving the accident now under consideration. Plaintiff's counsel attempted to obtain from the plaintiff her statement as to what admissions the defendant had made with respect to the accident. Objection was made to this type of questioning, and the objection was overruled. The following statements then came in:
"Witness: He told me that he was sorry that we got hurt. He said he didn't know we were taken to the hospital. He also told me he was sorry we didn't win in the last trial; that he would like to have seen me win. This is the only time I have ever talked with him. I have never seen him any time since.
"Q. Did he make any reference to his insurance company? A. Yes, he said he would have liked to see me get it from the insurance company."
Counsel immediately moved the court to strike out the testimony relating to insurance, and to admonish the jury to disregard it. This the court did. Other references to insurance occurred during the trial without objection.
It is entirely possible that the introduction of the matter of insurance into the case in this manner, in the absence of any further record on the subject, might have amounted to prejudicial and reversible error on the part of respondent. It must be understood, however, that the mere mention of insurance does not in every instance constitute reversible error. The important and controlling question is, How and under what circumstances was it brought into the case? The following cases decided by this court fairly illustrate a few of the possibilities and varying circumstances under which the question has arisen: Doheny v. Coverdale, ante, p. 534, 68 P.2d 142; Meinecke v. Intermountain Transp. Co., 101 Mont. 315, 55 P.2d 680; Vonault v. O'Rourke, 97 Mont. 92, 33 P.2d 535; Tanner v. Smith, 97 Mont. 229, 33 P.2d 547; Wilson v. Thurston Co., 82 Mont. 492, 267 P. 801; Robinson v. Woolworth Co., 80 Mont. 431, 261 P. 253; Wilson v. Blair, 65 Mont. 155, 211 P. 289, 27 A.L.R. 1235. The general rule announced in those cases may be applied to all cases of similar character and should be helpful generally in such matters. Each case, however, must, generally speaking, stand on its own particular facts and incidents and be determined by the manner and circumstances in which the question of insurance was brought into the case. Circumstances vary — likewise will the general rule and its exceptions also vary.
It appears from the supplemental transcript that, after counsel for plaintiff had examined and passed for cause the first twelve jurors on the voir dire examination, defendant's counsel (other than counsel representing defendant on this appeal) made the following statement to the court before proceeding with his examination of such jurors: "May it please the court, counsel and gentlemen of the jury: I believe during the trial of this case there are going to be some matters developed and in fairness to the court and jury, I advise the jury now that this defendant in this case, Mr. Heidel, carries liability insurance on his automobile with the Continental Casualty Company, that is, at the time of this accident. It is alleged in the complaint he carries liability insurance insuring him against any negligence with which he might be charged. "After he made this statement, in addition to the usual questions asked on a voir dire examination, he interrogated and inquired of each of the twelve jurors passed for cause, and ten others, whether they had any bias or prejudice for or against insurance companies, and whether the fact that there was an insurance company in the case defending defendant would prejudice them either for or against him.
Thus it may plainly be seen that the first mention of insurance in the case was made by the defendant's counsel. No question had been asked on that subject by plaintiff's counsel in his opening examination of the jurors he had passed for cause. No one could fairly say that insurance was not well and definitely in the case before the examination of witnesses ever started, or before plaintiff's alleged misconduct occurred. The usual prejudicial effect attributed to the mention of insurance in a case and so often chargeable against a plaintiff was obviated here by the earlier statements and queries of the adverse party. What error there was on the part of plaintiff's counsel was harmless, to say the least, and certainly not prejudicial. If later on plaintiff took advantage of this field of examination opened by the defendant — while possibly not proper nor pertinent — defendant cannot now be heard to complain, he having first injected the erroneous subject into the case. ( Pascoe v. Nelson, 52 Mont. 405, 158 P. 317; Doheny v. Coverdale, supra; 5 C.J.S., Appeal and Error, sec. 1501, p. 173.)
It is apparent that the court entertained the same view with relation to the injection of the insurance matter into the case that we have set forth here. By one of the instructions the jury was advised that the fact that defendant carried liability insurance was not to be considered in any manner. It instructed the jury that the insurance company was not a party to the action and that the jury could not find for the plaintiff unless it was found by a preponderance of the evidence that the defendant was guilty of negligence, and that such negligence was the proximate cause of the injuries to plaintiff. It will thus be observed that the court assumed that the insurance matter had come into the case properly. The court was, however, careful to see that the jury did not misunderstand the matter and that they were not allowed to take into consideration the fact of the insurance.
Since respondent did not have the voir dire examination [4] included in the settled bill of exceptions, appellant should not be taxed with the cost incident to the preparation of the supplemental transcript. It is an expense which is properly chargeable against the respondent by reason of her failure to amend the proposed bill of exceptions in such a way as to include, as was her right, the voir dire examination of jurors in the original draft of the transcript.
Judgment affirmed.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES ANDERSON, MORRIS and ANGSTMAN concur.