Summary
In Ryan v. Barrett (Vt.) 162 A. 793, answers like those of the plaintiff and his wife alone resulted in a mistrial; in Ronan v. J.G. Turnbull Co., 99 Vt. 280, 131 A. 788, a caution to the jury did not cure the error.
Summary of this case from Brown v. WalterOpinion
Opinion filed October 28, 1933.
Transfer of Case To Supreme Court for Determination of Exception before Final Judgment — G.L. 2262 — Trial — Prejudicial Error by Injecting into Case That Defense Is by Insurance Company — Mistrial — Discretion of Court — Presumption in Supreme Court as to Finding To Support Ruling Below — Abuse of Discretion.
1. In action of tort for negligence, where defendant's motion for mistrial, on ground that it was prejudicial error to bring into case that defendant was insured, was granted, plaintiff allowed an exception to ruling both as matter of law and matter of discretion, and bill of exception stated that exceptions were allowed, execution stayed, and cause passed to Supreme Court, latter will assume, nothing to contrary appearing, that lower court acted under G.L. 2262, and in its discretion passed exception to Supreme Court for determination before final judgment.
2. Where trial court acting under G.L. 2262, in its discretion passed plaintiff's exception to granting of motion for mistrial to Supreme Court for determination before final judgment, question was before latter court for decision.
3. As general rule, it is reversible error to inject into case fact that insurance company is defending suit.
4. Exceptions and limitations to general rule making it reversible error to inject into case fact that insurance company is defending suit may not be used as artifice for bringing such fact to jury's attention, good faith of party and his counsel being guiding principle.
5. Motion for mistrial on ground that fact that insurance company was defending suit had been brought into case, held addressed to discretion of trial court.
6. Except for abuse, exercise by trial court of its discretion in granting motion for mistrial, held not reviewable.
7. Where it was fairly inferable from record that trial court in granting motion for mistrial found existence of bad faith by counsel in instilling into minds of jury matter of defendant's insurance, Supreme Court will indulge this presumption in support of ruling below.
8. Trial court held not to have abused its discretion in granting motion for mistrial, where record supported inference of bad faith by counsel in instilling into minds of jury matter of defendant's insurance.
9. When party deliberately attempts to arouse prejudice of jury by circumventing salutary rule of law, he cannot complain if trial court, upon proper application, penalizes him by direction of mistrial.
ACTION OF TORT for negligence. Plea, general issue. Trial by jury in Rutland city court, Harold I. O'Brien, Municipal Judge, presiding. Upon defendant's motion, mistrial was ordered and jury discharged. The plaintiff excepted. The opinion states the case. Affirmed, and remanded.
Novak Bloomer for the plaintiff.
James P. Leamy and Vernon J. Loveland for the defendant.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
This is an action of tort arising out of an automobile collision at Pittsford Mills, this State, in June, 1930. A trial by jury was begun before the Rutland city court. During the direct examination of the plaintiff, the following questions were asked and answers given: "Q. What did you do immediately after the accident or collision? A. I got out of the car and talked to Mr. Barrett. Q. What did you say to him? A. I asked him how he happened to run into me. Q. What did he say to that? A. He said he was sorry but he didn't see me coming because he was dodging a car from Proctor, but to get my car fixed and his Insurance Company would pay the damage as he was to blame."
The defendant immediately moved for a mistrial on the ground that it was prejudicial error for the plaintiff to bring into the case the fact that the defendant was insured. The motion was granted, and the plaintiff was allowed an exception to the granting of the motion both as a matter of law and as a matter of discretion. The bill of exceptions states, "Exceptions allowed, * * * execution stayed and cause passed to the Supreme Court."
We will assume, nothing appearing to the contrary, that the trial court acted under G.L. 2262, and in its discretion passed the exception to this Court for determination before final judgment. In that view of the matter, the question is before us for decision. Hannah v. Hannah, 96 Vt. 469, 472, 120 A. 886.
The rule is clear and generally understood that it constitutes reversible error to inject into a case the fact that an insurance company is defending the suit. Ronan v. J.G. Turnbull Co., 99 Vt. 280, 290, 131 A. 788, and cases cited; MacDonald v. Orton, 99 Vt. 425, 431, 134 A. 599; Landry v. Hubert, 100 Vt. 268, 277, 137 A. 97. While this rule has its exceptions and limitations (Raymond's Admx. v. Rut. Ry. Light Pr. Co., 90 Vt. 373, 377, 378, 98 A. 909; Spinney's Admx. v. O.V. Hooker Son, 92 Vt. 146, 150, 102 A. 53; Cady, Admr. v. Lang, 95 Vt. 287, 289, 115 A. 140; McAndrews v. Leonard, 99 Vt. 512, 518, 134 A. 710; Note 56 A.L.R. 1418, 1432; Note 74 A.L.R. 849, 854), yet the exceptions and limitations are never to be used as an artifice to bring before the jury the poisonous fact of insurance. See Brooke v. Croson, 61 App. D.C. 159, 58 Fed. (2d) 885. In such circumstances the good faith of the party and his counsel is the guiding principle. Raymond's Admx. v. Rut. Ry. Light Pr. Co., supra; Spinney's Admx. v. O.V. Hooker Son, supra. The motion was addressed to the discretion of the trial court, and, except for abuse, its discretion is not reviewable. The motion challenges the good faith of the plaintiff in bringing before the jury the idea that an insurance company was to bear the loss. Plaintiff's counsel admits that he knew when the question was asked what the answer would be. It is fairly inferable from the record that the trial court found the existence of bad faith in instilling into the minds of the jury the matter of insurance. It is our duty to indulge this presumption in support of the ruling below. Rutland Sash Door Co. v. Gleason, 98 Vt. 215, 225, 126 A. 577. The plaintiff had the full benefit of a direct and unqualified admission of liability without the objectionable and prejudicial suggestion; in fact, it was necessary to omit it to keep the answer responsive to the question. When a party deliberately attempts to arouse the prejudice of the jury by circumventing a salutary rule of law, he cannot complain if the trial court upon proper application penalizes him by the direction of a mistrial.
Affirmed, and remanded for trial on the merits.