Dempsey v. Goldstein Bros. Amusement Co.
121 N.E. 429
Mass.
1919
Check Treatment
Braley, J.

A medical expert called by the defendant who had made a physical examination of the plaintiff at the hospital having testified that she had not suffered any permanent injury, the question put in cross-examination, “Who asked you, doctor, to examine this woman? ” was relevant, and the answer, “Mr. Chetworth, representing the Casualty Company of America, the manager,” was responsive. But before the question was asked, the counsel for the plaintiff, during a conference by .the parties with the presiding judge, had been informed that the defendant *464held a policy of indemnity insurance, and, upon the disclosure shown by the answer, the defendant’s counsel moved that it be stricken out on the ground previously stated "to the judge that, if the fact of insurance were admitted, the defendant might be prejudiced on the question of liability or in' the assessment of damages.

It is settled that evidence that the defendant was insured against accidents could not have been introduced as an admission of negligence. Anderson v. Duckworth, 162 Mass. 251. Perkins v. Rice, 187 Mass. 28. Sibley v. Nason, 196 Mass. 125. But the answer under discussion is not in the nature of an admission. Nor was it received in evidence as such. ‘ While the witness does not appear to have been an officer, age,nt or servant of the defendant corporation, he had been called and had given evidence in its behalf, and, if the jury accepted his opinion, the measure of the plaintiff’s damages would be materially affected. It was competent for the plaintiff to show, if she could, that he was not disinterested, and ordinarily the fact that he had been employed and paid by adversary interests to make the examination would be admissible. Mayhew v. Thayer, 8 Gray, 172, 177. In Stevens v. Stewart-Warner Speedometer Corp. 223 Mass. 44, the question excluded on cross-examination was, “Who were you working for? ” and the opinion holds, that the answer which counsel expected, “The Federal Insurance Company who insured the car against theft,” should have been admitted as tending to affect the weight to be given to the testimony of the witness upon his direct examination. It is true the action in that case was brought for the benefit of the insurance company which had indemnified the owner. A defendant, however, who is insured can properly call a witness even if as the paid employee of the insurance company he has prepared the case for trial, and who may give evidence of alleged admissions obtained by him in conversation with the plaintiff, which, if believed by the jury, would exonerate the defendant from all liability. If his employment cannot be shown because the answer would reveal that the defendant had a policy of indemnity insurance, an exception is created to the universal rule, that the pecuniary interest of a witness or his prejudice or bias in favor of the party calling him can always be shown, limited only as to the extent of the in*465quiry by the sound discretion of the trial judge. Jennings v. Rooney, 183 Mass. 577, 579. The test of admissibility in Stevvens v. Stewart-Warner Speedometer Corp., just cited, as in the case at bar, is the question of the possible partiality of the witness, to which the judge’s ruling denying the request to strike out is limited by the report.

If no further action had been taken, the defendant could urge that the jury might give the answer a broader scope and meaning than the ruling permitted. The judge, however, in instructions to which no exceptions were taken explained his reasons for admitting the answer, and told the jury in clear and positive words, that they were “not to take into account, in passing upon this case or upon any issue of it, the fact that the defendant was insured. That is absolutely of no consequence. It has no bearing whatever upon the elementary or fundamental questions here upon which the defendant’s .liability is determined. So that you will disregard the reference made to the fact that an insurance company was responsible for Dr. Davis’s visit to the hospital, and will not let it influence you in any way.” It must be assumed that the jury followed the instructions. Ducharme v. Holyoke Street Railway, 203 Mass. 384, 392, and cases cited.

The ruling requested is also inapplicable to so- much of the answer as is shown by the words “Mr. Chetworth,” and the refusal .of a ruling which is in part correct and in part is erroneous, where the counsel does not ask for a separate ruling on the correct part, affords no ground of exception. Gardiner v. Brookline, 181 Mass. 162. Smith v. Duncan, 181 Mass. 435. Commonwealth v. Anderson, 220 Mass. 142, 145.

A majority of the court are of opinion that, the defendant having failed to show error, the exceptions should be overruled and judgment entered for the plaintiff on the verdict.

So ordered.