In Fielding v. Publix Cars, Inc., 133 Neb. 818, 277 N.W. 331, this court stated: "In instructions to the jury, fragments, though open to criticism when considered by themselves, are not necessarily prejudicial to the complaining party, if the charge as a whole correctly states the issues and the law applicable to the pleadings and the evidence."Summary of this case from Phillips Petroleum Co. v. City of Omaha
Filed March 13, 1936.
1. Trial: INCOMPETENT TESTIMONY. In an action against a taxi-cab company for injuries to a passenger, it is reversible error for the trial court to permit plaintiff on his case in chief to show that defendant is indemnified from loss by an insurance company, where such proffered evidence is not relevant to any material issue in the case.
2. ___: RULE OF PRACTICE REVOKED. The rule of practice promulgated in Jessup v. Davis, 115 Neb. 1, 211 N. W. 190, and heretofore followed by this court, to the effect that plaintiff may, in a personal injury action, by appropriate interrogatories on cross-examination, establish that defendant is indemnified from loss by an insurance company is hereby revoked, such revocation to be effective 20 days from the date of the release of this opinion.
Appeal from the district court for Douglas county: WILLIS G. SEARS, JUDGE. Reversed.
Wear, Boland Nye, for appellants.
Gaines, McGilton, McLaughlin Gaines, L. Q. Hills and Bernard R. Stone, contra.
GOSS, C. J., ROSE, GOOD, EBERLY, DAY, PAINE and CARTER, JJ.
In this action the plaintiff sued the defendants for damages for personal injuries sustained while riding in a cab belonging to the Publix Cars, Inc. The jury returned a verdict for $5,000 and judgment was entered thereon. From the overruling of their motion for a new trial, defendants bring the case to this court on appeal.
The evidence of the plaintiff was to the effect that he hired the cab to take him to his home, and, while so doing, the cab driver suddenly and without warning applied his brakes and caused plaintiff to be thrown forward against the front seat of the cab. The evidence further shows that plaintiff suffered a broken jaw and complications as a result thereof that necessitated many operations, much pain and suffering, and a scarred and misshapen face and jaw.
Defendants complain of the action of the trial court in permitting the plaintiff to show by the president of Publix Cars, Inc., on direct examination, that Publix Cars, Inc., carried liability insurance. The record discloses that plaintiff called Guy Thomas, president of Publix Cars, Inc., as a witness and adduced the following testimony: "Q. Do you carry a policy of automobile insurance protecting your company against accidents to persons driving and riding in your cabs for fare ? Do you carry such a policy of insurance? * * * A. Yes; we carry a five-thousand dollar policy." The defendants objected to this question before the answer was given, for the reason that it was incompetent, immaterial and irrelevant, and not within the method of procedure laid down by the supreme court in similar cases. The overruling of this objection is assigned as reversible error.
It is the contention of plaintiff that the evidence was admissible to prove ownership of the cab and that the relation of master and servant existed. The plaintiff alleges in his petition, however, that one Reynolds was the owner of the cab in which the accident occurred, so that the evidence could not have been properly admitted for that purpose. We agree with plaintiff's counsel that evidence that defendant carried liability insurance is admissible to prove the relation of master and servant, or any other relation upon which liability can be predicated, where, as in the case at bar, it is an issue under the pleadings. Biggins v. Wagner, 60 S. Dak. 581, 245 N. W. 385; Burns v. Getty, 53 Idaho, 347, 24 Pac. (2d) 31; Gayheart v. Smith, 240 Ky. 596, 42 S. W. (2d) 877. But, in the case at bar, the form in which the question was asked precludes this argument because it shows on its face that it did not tend to prove any such issue. The question asked made no reference to the cab in which plaintiff was riding at the time of the accident and was clearly offered for the purpose of informing the jury that an insurance company, and not the defendants, would pay any judgment they might render. Plaintiff also contends that the evidence that defendants carried liability insurance was admissible under the rule of practice adopted in the case of Jessup v. Davis, 115 Neb. 1, 211 N. W. 190, and cites Nichols v. Owens Motor Co., 121 Neb. 105, 236 N. W. 169, and Combs v. Owens Motor Co., 121 Neb. 5, 235 N. W. 682, to sustain his contention. It is true that in those cases it was held that it was not prejudicially erroneous for plaintiff to show on his case in chief that defendant carried liability insurance, but in those cases it was not contended that the judgments were excessive, and the error of the trial court in permitting it to be shown could not have been prejudicial to the defendant. But such is not the situation in the case at bar. We hold that the evidence in question did not fall within the rule of practice set out in Jessup v. Davis, supra, such rule being as follows: "Where a plaintiff in a personal injury action seeks by appropriate interrogatories on the cross-examination to discover whether the defendant is indemnified from loss by an insurance company, it is error for the court to sustain an objection to interrogatories which tend to develop the fact on that question." See Miller v. Central Taxi Co., 110 Neb. 306, 193 N. W. 919. We therefore hold that the admission of the evidence relative to liability insurance was prejudicially erroneous.
Defendants contend that the rule of practice promulgated by this court in the case of Jessup v. Davis, supra, is unsound and not sustained by legal authority, and request a reconsideration of the rule by this court. The question whether the plaintiff has a right to show that the defendant carries liability insurance first came before this court in the case of Egner v. Curtis, Towle Paine Co., 96 Neb. 18, 146 N. W. 1032. In that case the court announced the following rule: "Where a defendant, in a personal injury action, is indemnified by an employers' casualty insurance company, it is proper for plaintiff's counsel to show such fact when impaneling the jury, and to inquire of each juror upon his voir dire if he is a stockholder or agent, or in any manner interested in such company." This rule was followed in Koran v. Cudahy Packing Co., 100 Neb. 693, 161 N. W. 245, and Penhansky v. Drake Realty Construction Co., 109 Neb. 120, 190 N. W. 265. The right of counsel to interrogate jurors on their voir dire examination in order to determine whether it is expedient to challenge any of them peremptorily, within proper limits, cannot be denied. The authorities differ on this question on the method of interrogation to be employed rather than on the right. We are impressed with the method approved by the Michigan court in the case of Holman v. Cole, 242 Mich. 402, 218 N. W. 795, wherein the court say: "In the case before us, the inquiry referred to a foreign corporation. We feel forced to the conclusion that the purpose of counsel in asking each one of the jurors called if he was interested as a stockholder in such company was not for the purpose of obtaining information, but to impress upon their minds that the defendant was protected by insurance and would not be personally liable for any judgment entered in the case. If information alone was sought, it might easily have been obtained by asking the jury collectively if any of them were stockholders in any corporation, and, if they were, to have asked the kind of a corporation they were interested in." We can conceive of situations even under the foregoing rule where it would be necessary to go into the question further and bring out the name of the insurance company involved. We cannot say, therefore, that the rule heretofore announced with reference to the interrogation of juries on voir dire on this subject is unsound. The limits to which counsel may go in interrogating the jury must rest largely in the discretion of the trial court, viewed in the light of the situation as it comes before it.
But, where the plaintiff shows that defendant carries liability insurance, when it is not relevant to some issue in the case, we have come to the conclusion that it is inadmissible. Such evidence can have no relevancy to the question of negligence. It cannot be disputed that there are cases where liability insurance may be the subject of evidence, or the object of interrogatories, if the fact of insurance bears upon an issue in the case. In other words, if the evidence is properly admissible for any purpose, it cannot be excluded for the reason that it tends to prejudice the defendant because it shows or tends to show that he carries liability insurance. We have examined with care the opinion in the case of Jessup v. Davis, supra, as well as the opinions of the court of appeals of the District of Columbia, three circuit courts of appeal and the courts of last resort in 40 sister states, all holding to the contrary. We will not take the space to quote from each of these holdings. A discussion of a large number of cases contrary to Jessup v. Davis, supra, and supporting the rule we now believe to be the correct one, will accomplish no good purpose. We will, however, cite a few authorities that we believe state the better rule.
In dealing with this question, the court in James Stewart Co. v. Newby (C.C.A. 4th Circuit) 266 Fed. 287, said: "This court must take cognizance of the general recognition among the members of the bar, as well as by the courts, of the harmful effect upon the minds of jurors of such testimony as was here sought to be introduced. The only purpose for which such evidence is presented is to prejudice the jury, and the poison is of such character that, once being injected into the mind, it is difficult of eradication. Where it is allowed to remain during the whole course of a trial, and by persistent unrebuked references is allowed to influence the jurors' consideration of all the other evidence during the trial, the antidote of a final instruction to disregard the testimony is ineffective. The removal of the fly does not restore an appetite for the food into which it has fallen. * * * Verdicts cannot be relieved of the danger of criticism as long as there is a basis for the opinion that they have been rendered through the influence of prejudice."
In Brown v. Walter (C.C.A. 2d Circuit) 62 Fed. (2d) 798, Judge Learned Hand, speaking for the court in a case involving this question, said: "There can be no rational excuse, except the flimsy one that a man is more likely to be careless if insured. That is at most the merest guess, much more than outweighed by the probability that the real issues will be obscured. * * * In the case at bar, save for the cross-examination of the doctor, there was no excuse for even an intimation that the defendant was insured; if that witness is not called upon the next trial, there will be none whatever, and unless the insurance is scrupulously kept from the jury, a mistrial should be-declared. The prevalent knowledge that in such cases insurance is usually taken, is a hard enough handicap at best; it is difficult in any event to get a decision on the real issues."
In Edwards v. Laurel Branch Coal Co., 133 Va. 534, 114 S. E. 108, the court said: "It is clear, both upon reason and authority, that the court was right in refusing to permit the question to be answered. That the company carried liability insurance was wholly irrelevant, and that the protection thus afforded may have tended to render them less careful than they would otherwise have been was likewise wholly irrelevant, because the question of liability depended upon the fact of negligence, and not upon the motives or influences which may have brought it about."
In Patterson v. Surpless, 107 N. J. Law, 305, 151 Atl. 754, the court said:
"To propound to the jurors a question as to their stockholdings in the insurance company named could have had but one purpose and effect, viz., to prejudice the jurors against the defendants in the trial of the case. It would at once instill in their minds the thought that the defendant would ultimately not be called upon to pay any verdict that the jury might render, but that this burden would fall upon an insurance company which had been paid to take the risk. The prejudicial effects of such an impression are obvious and can scarcely be magnified.
"Courts exist for the judicial determination of the rights of litigants and for the administration of justice, and it is the duty of those presiding, as far as humanly possible, to see that the setting of each individual case shall be such that an impartial and just deliverance shall be had between the parties, and when counsel deliberately seeks to inject into a cause an element which has, and is designed to have, the effect of prejudicing the rights of one or the other of the litigants, it is the duty of the judge to guard against such effect, either by arresting the trial in limine, as was requested in the present case, or by guarding against the pernicious results through proper instruction to the jury as was clearly indicated in the opinion cited above."
In Brooke v. Croson, 58 Fed. (2d) 885, the court said: "It is established by the overwhelming weight of authority that as a general rule it is reversible error in the trial of an action for damages for personal injuries suffered in an automobile accident to permit the plaintiff to introduce evidence to show that the defendant is protected by liability insurance against such accidents. It is held that such evidence is not relevant to the issue of negligence, and can have no effect but to induce a verdict based on the fact that an insurance company, and not the defendant, must pay the award."
In George A. Fuller Co. v. Darragh, 101 Ill. App. 664, the court said:
"None of the learned counsel for appellee will gravely contend that whether appellant had procured insurance against liability for accidents or whether the suit under consideration was being defended by an insurance company or its attorney, could possibly throw any light upon the question of whether the injury to appellee had been occasioned by actionable negligence of appellant.
"Why, then, should the jury be told that the defense was made by a casualty insurance company? If this can be done, why may not a jury be told that the action is prosecuted by a corporation created to hunt up and prosecute accident cases, or by an attorney for a contingent fee; and that one-half of any verdict rendered for the plaintiff will go to such corporation or to his attorney?
"It is urged that this statement was made for the purpose of selecting a disinterested jury.
"Jurors may be asked if they know certain persons or have business or other relations with them, but under the guise of obtaining a fair jury, information calculated to prejudice jurors against either party cannot be given, and the trial court should not only prevent this, but if satisfied that despite its rulings jurors have thus been swerved in the considerations, should set aside verdicts so obtained."
In Citti v. Bava, 204 Cal. 136, 266 Pac. 954, it was held: "The natural tendency of a line of examination that suggests to the jury that the defendant is indemnified against any judgment for damages against him is highly prejudicial to his rights, especially in a closely balanced case where the evidence otherwise would be easily sufficient on appeal to support a verdict either for the plaintiff or for the defendant. Such attempts on the part of counsel have frequently been held to be improper and prejudicial."
In Blue Bar Taxicab Transfer Co. v. Hudspeth, 25 Ariz. 287, 216 Pac. 246, the court said: "The effect of these questions, together with the answer of the first question, made the fact known, and impressed upon the jury, that back of defendant's liability stood some sort of insurance. This information was not wholly inadvertent, so far as plaintiff was concerned, nor was it a necessary incident of any legitimate evidence. No instruction was given to the jury to cure the effect of it. The consequence of such information is well known, and is sufficient to require a new trial. It is useless for counsel to talk of the innocuous character of this evidence, when they at the same time, in order to get the information before the jury, are willing to imperil any verdict which might be rendered. All lawyers know the rule in regard to such evidence, and they must not expect the court to establish a rule, and then wink at its violation."
In Horsford v. Carolina, Glass Co., 92 S. Car. 236, 75 S. E. 533, the court said: "There can be no doubt on the bench or at the bar that in an action by an employee against his employer to recover damages for personal injury both reason and authority forbid bringing into the evidence or argument the fact that defendant is protected by employer's liability insurance. Such evidence or argument has a manifest and strong tendency to carry the jury away from the real issue and to lead them to regard carelessly the legal rights of the defendant on the ground that some one else will have to pay the verdict. This is the only reason that can be assigned for attempting to use such testimony and argument. One of the most manifest and pressing duties not only of courts but of lawyers is to prevent influences of this kind from finding their way into the administration of justice. In the discharge of this duty the entire commonwealth is deeply concerned, for the use in evidence and argument of such influences produces injustice, and waste of time and labor of courts and juries at great public cost."
To quote from all the authorities from other jurisdictions on this question would be a work of supererogation. Cases from jurisdictions not hereinbefore cited, which support the rule announced in this opinion, are: Jupollo Public Service Co. v. Grant (C.C.A. 4th Circuit) 42 Fed. (2d) 18; New Aetna Portland Cement Co. v. Hatt (C.C.A. 6th Circuit) 231 Fed. 611; Dempsey v. Goldstein Bros. Amusement Co., 231 Mass. 461, 121 N. E. 429; Sawyer v. Arnold Shoe Co., 90 Me. 369, 38 Atl. 333; Rodzborski v. American Sugar Refining Co., 210 N. Y. 262, 104 N. E. 616; Coe v. Van Why, 33 Colo. 315, 80 Pac. 894; Steele-Smith Dry Goods Co. v. Blythe, 208 Ala. 288, 94 So. 281; Goss v. Williams, 196 N. Car. 213, 145 S. E. 169; Holloway v. Telfer, 136 Kan. 80, 12 Pac. (2d) 826; Herrin, Lambert Co. v. Daly, 80 Miss. 340, 31 So. 790; Northwestern Fuel Co. v. Minneapolis Street R. Co., 134 Minn. 378, 159 N. W. 832; Prewitt-Spurr Mfg. Co. v. Woodall, 115 Tenn. 605, 90 S. W. 623; Smith v. Yellow Cab Co., 173 Wis. 33, 180 N. W. 125; Fakes Co. v. Fort Worth Gas Co., 280 S. W. (Tex.Civ.App.) 234; Walters v. Appalachian Power Co., 75 W. Va. 676, 84 S. E. 617; Ronan v. Turnbull Co., 99 Vt. 280, 131 Atl. 788; Curran v. Lorch, 243 Pa. St. 247, 90 Atl. 62; Deffenbaugh v. InterState Motor Freight Corporation, 254 Mich. 180, 235 N. W. 896; Wilson v. Wesler, 27 Ohio App. 386, 160 N. E. 863; Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S. W. 6; Walker v. New Haven Hotel Co., 95 Conn. 231, 111 Atl. 59; Miller v. Harrison Construction Co., 298 S. W. (Mo.App.) 259; Mithen v. Jeffery, 259 Ill. 372, 102 N. E. 778; Stoskoff v. Wicklund, 49 N. Dak. 708, 193 N. W. 312; Taggart v. Keebler, 198 Ind. 633, 154 N. E. 485; Danville Light, Power Traction Co. v. Baldwin, 178 Ky. 184, 198 S. W. 713; Chielinsky v. Hoopes Townsend Co., 1 Marv. (Del.) 273, 40 Atl. 1127; Wilson v. Blair, 65 Mont. 155, 211 Pac. 289; Ryan v. Trenkle, 199 Ia. 636, 200 N. W. 318; Frank v. Corcoran, 25 Ohio App. 356, 158 N. E. 501; Wilson v. St. Joe Boom Co., 34 Idaho, 253, 200 Pac. 884; Aderhold v. Bishop, 94 Okla. 203, 221 Pac. 752; Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020; Hall v. Trimble, 104 Md. 317, 64 Atl. 1026; Bennett v. City of Portland, 124 Or. 691, 265 Pac. 433; Gerry v. Neugebauer, 83 N. H. 23, 136 Atl. 751; St. Jean v. Lippitt Woolen Co., 69 Atl. (R. I.) 604.
Against this array of authority, we have failed to find a single case supporting the rule announced by our court in Miller v. Central Taxi Co., supra, and Jessup v. Davis, supra. The authorities are unanimous in supporting a contrary view. In addition to the great weight of authority being against the rule heretofore existent in Nebraska, we feel that reason and logic also support the majority view.
It is therefore ordered that the rule of practice promulgated in Jessup v. Davis, supra, and heretofore followed by this court, is revoked, such revocation to be effective in all cases tried after 20 days from the date of the release of this opinion, and that on and after said date, this rule and the holdings of this court based thereon shall cease to be authoritative.
For the reasons herein stated, the judgment of the trial court is reversed, and the cause is remanded.