Vonault v. O'Rourke , 97 Mont. 92 ( 1934 )

I agree with nearly all that is said in the foregoing opinion, but I do not agree that a new trial should be granted.

I do not agree that counsel for plaintiff was guilty of misconduct in the cross-examination of defendant. Defendant on his direct examination testified in detail as to how he performed the operation on plaintiff. In effect, his evidence went to show that plaintiff's injury was not produced by any act or omission of his. He said he told plaintiff the blister did not occur in the operating room, and that he told her "we could not admit any liability." I think it was entirely competent for plaintiff's counsel on cross-examination to develop the fact, if he could, that defendant had made an admission of liability to him. Our statute, section 10665, Revised Codes 1921, "permits a wide range for cross-examination, and the courts should incline to extend, rather than to restrict, the right." (Kipp v. Silverman,25 Mont. 296, 64 P. 884, 888.) "Doubt respecting the limits to which cross-examination may go ought usually, if not always, to be resolved against the objection." (Cobban v. Hecklen,27 Mont. 245, 70 P. 805, 811.)

In 40 Cyc. 2484, it is said: "It is proper cross-examination to interrogate a witness as to facts or circumstances inconsistent with his testimony, or conduct on his part at variance with what would be natural or probable if his statements on his direct examination were true." And on page 2486 it is said: "A witness may be interrogated on cross-examination as to statements which he has made to others with respect to the matters as to which he has testified, especially where the alleged statements as to which he is questioned were inconsistent with his testimony. * * * So also a witness may be interrogated as to admissions against interest of the party for whom he has testified."

It seems to me that the right of cross-examination is unduly restricted if plaintiff cannot, after defendant has related his version of what transpired in such a manner as to negative liability, elicit on cross-examination of defendant an admission by him of liability. Obviously that was the purpose of asking the question complained of. The question was: "And that you also stated that she had a burn and had a scar and that you carried insurance to protect you against that kind of a proposition, and you thought she should be compensated for it?"

The fact that, coupled with the admission of liability, there was reference to insurance, is no objection to the admissibility of the admission. In 56 A.L.R. 1448, it is said: "Evidence showing an admission of liability by the defendant may properly be admitted, although it is developed that in making the admission the defendant stated that he carried liability insurance. Thus, the fact that the defendant in an automobile accident case is insured against liability does not render him immune from having his admissions used against him, when favorable to the plaintiff; and if, in placing before the jury a statement made by him, or conversations in which he indulged, which tend to show such admissions, it appears as a part thereof that he is so protected, he has only himself to blame therefor." In addition to the cases there cited, see the long list of cases to the same effect in the note in 74 A.L.R. 856.

The rule is well stated in Dullanty v. Smith, 203 Cal. 621,265 P. 814, 816, where the court said: "The fact that this testimony contained, in addition to unobjectionable matter, references to the insurance of defendant did not necessarily make it inadmissible for all purposes. It is true that the court frowns upon any attempt to show that a defendant carries indemnity insurance, but where, as here, there is an entire absence of any indication whatsoever of lack of good faith on the part of plaintiff, evidence of this character, as an admission against interest, or for certain other purposes, may be received, notwithstanding the fact that it contains material which under other circumstances would be objectionable."

My associates concede this to be the rule, but condemn the question here because it was propounded on cross-examination of defendant instead of as a part of plaintiff's case in chief. I see no reason for drawing this distinction. It seems to me it is going a long way to impute bad faith on the part of counsel in asking the question in the face of the authorities holding that the evidence is admissible under the exception to the general rule.

The suggestion in the majority opinion that the record already disclosed everything attempted to be brought out by the question, except the matter of insurance, is, I think, unwarranted. All that defendant had admitted stating to plaintiff's counsel before the question complained of was asked, was that plaintiff had received the burn while she was under his care and while she was in the hospital. The question complained of was designed to bring out the admission that defendant, and not the hospital, was responsible for plaintiff's injury, and, incidentally and as a part of the admission, that defendant was protected by insurance against such acts. Plaintiff's counsel in rebuttal testified regarding what defendant told him, as follows: "Dr. O'Rourke finally stated that there was no question but that Mrs. Vonault was burnt; that she was burnt while she was under his care as her physician in charge of the operating case, and that he felt that he was responsible for it. He made the further suggestion that he hadn't received any compensation for performing his operation, and he felt that if he cancelled the obligation of $250 for the performance of this operation that should satisfy Mrs. Vonault and we should drop the whole thing and consider it as settled."

My associates point out that plaintiff's counsel when thus relating what defendant told him made no reference to the insurance. But, as pointed out in the majority opinion, the court twice ruled that all evidence relating to the question of insurance was improper. Plaintiff's counsel evidently refrained from relating the statement of defendant on this subject out of respect for the court's ruling and to avoid the possibility of being adjudged in contempt. (State ex rel. Hurley v. DistrictCourt, 76 Mont. 222, 246 P. 250.)

There is another reason why a new trial should not be awarded here. The question propounded was never answered. The court sustained the objection to it. It went further and admonished the jury to disregard the remarks concerning insurance. In the case of Pascoe v. Nelson, 52 Mont. 405, 158 P. 317,318, the court had this identical question before it, and Mr. Justice Holloway, speaking for the court, said: "Assuming, however, that counsel made the remarks attributed to him, a proper admonition to the jury to disregard them ought to have been sufficient. So long as the jury system is in vogue courts must assume that jurors possess sufficient intelligence and force of character to discharge their duty when properly directed." This case has not yet been overruled but was followed, and the rule there stated applied in Kelly v. John R. Daily Co.,56 Mont. 63, 181 P. 326.

What else can or must the trial judge do to keep from being put in error? Must he go on with the trial, waste his and the jury's time, and then, after verdict against defendant, grant a motion for a new trial? It may be suggested that the trial court should have ordered a mistrial, summoned a new jury, and called for a new deal. If this is the proper course, must he do it of his own motion or only on motion of the party aggrieved? I think if defendant was not satisfied by having his objection sustained, the offered evidence excluded, and the jury admonished to disregard all reference to insurance, he should have moved for a mistrial, as was done in the case of Moffitt v. Ford MotorCo., (Cal.App.) 26 P.2d 661. This he did not do but took his chances with the jury then impaneled. Reason and authority support the view that he cannot now urge the alleged misconduct in support of a motion for a new trial. This question, under identical circumstances, was before the supreme court of North Carolina, in Allen v. Garibaldi, 187 N.C. 798, 123 S.E. 66,67, where the court disposed of it as follows: "We think the defendant's motion for a new trial, after verdict, upon the ground stated, must be overruled. The court sustained the defendant's objection, and this was all that he was asked to do at the time. There was no motion for a mistrial, or venire denovo because of these alleged improper questions. Defendant elected to proceed with the trial and to take his chances with the jury as then impaneled. Indeed, it appears that counsel for both sides, during the argument, cautioned the jury to disregard the suggestion of liability insurance, as there was no evidence in the case tending to show its existence. Evidently the defendant did not consider it of sufficient importance on the trial to ask that a juror be withdrawn and a mistrial entered." To the same general effect are ContinentalCasualty Co. v. Pouquette, (C.C.A.) 28 F.2d 958;Sautter v. Rowland, 285 Pa. 212, 131 A. 733; Jackson v.Atwood, 194 Ind. 56, 140 N.E. 549; compare, also, Smith v.Wilson, (Mo.App.) 296 S.W. 1036; Brooklyn Heights R. Co. v.Ploxin, (C.C.A.) 294 Fed. 68; Merritt v. Central of GeorgiaR. Co., 28 Ga. App. 746, 113 S.E. 62; Ramseyer v. Dennis,187 Ind. 420, 116 N.E. 417, 119 N.E. 716; Rostad v. PortlandRy. etc. Co., 101 Or. 569, 201 P. 184. The case of Wilson v.Thurston Co., 82 Mont. 492, 267 P. 801, does not militate against this view, for there the trial court committed error in overruling the objection to questions propounded to eight jurors on the subject of their connection with insurance companies.

I think the trial court properly denied the motion for a new trial and that the judgment should be affirmed.