*1 Argued petition 26, 1971, March October affirmed rehearing 31, 1972 denied March Appellant, v. MARTIN GARBER, ux, et Respondents. argued Roger the cause Dick, Dalles, The L. Dick appellant. Dick, were & The Dalles. the briefs On argued Gosgrave, Portland, cause for J. Walter Maguire, were Kester respondents. the brief & On Cosgrave, Portland. participate J., in this decision.
Howell, did J. DENEGUE, plaintiff personal in his recovered verdict
injury granted The trial court defendants’ action. appeals. Plaintiff motion for new trial. *2 grounds injection for new
One of the
trial was the
of insurance on cross-examination
a witness called
when
defendants. The trial
the
court,
grounds urged
new
stated that when the four
trial,
be the basis
the
trial were con
together,
particularly
injection
the
sidered
“and
of
though involuntarily
insurance into the
even
my opinion
get
is
that
done, it
defendants did not
* * *."
fair trial
fact
the
When the
defendant
is insured
injected
unintentionally
has been
into the case we have
grant
or
held that whether
not
a mistrial is within
of the trial court.
discretion
“* * * Judicial discretion in such a situation
properly
prejudice might
balances whatever
have
against
occurred
all
other relevant
factors
present
particular
weigh
a case. The
must
against
prejudice actually
an inference that
resulted
any countering influences that arise from his own
knowledge
special
conditions in his court-
room. The record discloses no reason to believe
failed
exercise his discretion
judiciously in this case. A mistrial could have
granted,
been
but its denial was not an abuse Johnson v.
discretion.”
237 Or 1, 6, 389
(1964).
intentional or inadvertent, point to some for a mistrial unless court can negating special the likelihood of circumstance prejudice.” 331. 259 Or at necessary to take the In the instant case it urged by step found The trial court the dissenters. preju- injection of insurance the unintentional deprived the defendant a fair dicial and granted mistrial. Such a should have therefore, it, finding ruling within its were discretion.
Affirmed. *3 dissenting.
TONGUE, J., by majority, stated the trial As the granted for trial because defendant’s motion new he get opinion a of the that defendants did not fair was “cumulative effect” of the trial because of the four urged par grounds “and as a basis for that motion injection ticularly the the into even though involuntarily done.” ‹ majority the for first time in would,
The Ore- granting personal gon, the of a new trial in a affirm ground upon injury ease the the inadvertent ‹ Although expressly stated, appear not so it would to be majority opinion opinion from the and the obvious both of the remaining grounds three the for trial the motion for separately sufficient, trial would have been either new or as granting whole, a for an order a a as basis trial. An of the confirms that examination record conclusion. although by in re- a witness, mention of insurance sponse proper question, sufficient is of itself a a The of a new trial. reason for the reaching unprece- given by majority for such an the is that the of a new trial dented result “largely such a case is matter within uncon- judge, quoting trolled” discretion of from Orchards, Blake v. Webster 348, 354-55, majority would reach this re- despite sult fact that defendant’s counsel made no objection, strike motion to or motion for mistrial at the time of mention of insurance the witness, but testimony until the end his waited and until the making next recess before a motion for mistrial, which was denied. then respectfully opinion by
I most dissent from the I because believe that is Blake not con- trolling under the facts of this case and also because majority opinion I the result of believe that contrary unsound and both unrealistic and also weight authority by both the clear other courts previous practice Oregon. and the Any resulting 1. error the inadvertent mention from insurance was waived defendant’s failure object promptly and move a mistrial. personal injuries is an action
This suffered driver of truck the result of what steering claimed to be defective mechanism. De- expert witness, fendant’s cross-examination plaintiff’s was asked counsel, whether he had seen *4 “remaining steering portion of the mechanism.” In question defendant’s answer to that witness stated: Adjustment we The I think did. “Yes, General * * *up to where me Bureau Insurance man took * * *." the vehicle by defendant’s at that time No motion was made that the to ask strike that answer or counsel to either disregard less to ask much to it, be instructed defendant’s Instead, declared. that a mistrial be attorney complete plaintiff’s counsel allowed the (extending nine additional over his cross-examination complete proceeded transcript pages) his and then It was the same witness. examination of redirect only its next recess that then called when the court made motion for chambers, counsel, defendant’s in that and, connection, another mistrial ground” urged for that motion that “as an additional had been made his insurance” own mention of “a warning despite his witness “about witness, bringing any of insurance.” mention out then conceded that men- counsel Defendant’s and that was not deliberate “It’s tion of solely the court and in the the discretion of within everything happened light ease.” else that stating judge, “I after realize that” and agreeing that the mention of in- the statement with denied defendant’s deliberate, was not surance mistrial. According in 4 ALR2d an annotation p at 820: may defendant’s counsel “The conduct be successfully making estop him from as to such objection reference to insurance is that a such require error as to declaration of mistrial.” support
Among of that cases cited rule is Levy Bros., 18 Cal 2d the case Hatfield
415 (at 849) p (1941), in was held P2d which it 841 successfully prejudice might claim not the defendant because no of insurance from the inadvertent mention objection had left made after the witness until any never at time the stand and because defendant strike the answer or ask court to made a to jury disregard the reference to insur- to instruct the same effect as other cases to cited ance. See also supra, at in 4 820-21. ALR2d, previously has had
This court occasion to question whether of counsel rule failure to object promptly to or to move strike or to ask the jury disregard question instruct to court to or inadvertently, insurance is mentioned answer in which promptly move for a will mistrial, to bar defend- subsequent motion for ant from a mistrial or new ground. trial on that many has held in
This court
cases, however,
object promptly
to
improper
that
question
the failure
to an
objection
such
waives
an
and that,
in ad
necessary
promptly
it is
to move
dition,
to strike an
proper question. ›
improper
answer
a witness to a
also held that
This court has
such an event, the
requested
should also be
to instruct
testimony fi
jury
disregard
such
to
and
ordinarily
a trial
the admonition
disregard
testimony
improper
cures such an
except
error
extreme
such as
appeal
circumstances,
a direct
›
Savage
al,
v.
257, 274,
Adm’x
Palmer et
204 Or
(1955).
Michas,
See also Wallender v.
587, 592,
Or
475 (1970);
Eye
v. Portland
Hospital,
Derrick
etc.
90,
DeSpain
(1922);
Bohlke,
and
fi Sargent Foland, P 349 not). fl passion prejudice (which this was In ad the court has dition, held that a motion for mistrial promptly must be made and that such a motion when too late. (cid:176) ordinarily made later is particular why There are reasons these same rules applicable controlling should be in cases in which, proper questions, improper answers are given in which mention of insurance is made inad vertently. already this court has Indeed, held that the *6 jury disregard admonition a trial an inadvertent reference a witness to insurance cures (if any), ordinary such an error at in least case, such as this. – personal injury
If defendants’ counsel in
cases
required
action,
are not
to take such
and to do so
they
encouraged,
promptly,
by making
will be
of a
tardy
pro
forma motion for
in the ex-
mistrial
“gamble”
pectation
will
that it
be
on a
denied,
favor-
“hedge”
and still retain a
able verdict
in the record
against an unfavorable
rather than run
verdict,
having
vigorous
prompt and
risk of
a
motion for mis-
granted,
expense
with the resultant
trial
and incon-
fl Bratt
Smith,
50, 60,
(1946).
Or
180
It
follows that
the trial court
not
denying
also
defendant’s motion for mistrial.
It
fol
deny
trial
not
erred in
lows that the
court would
have
subsequent
ing defendant’s
new
on
ground.
same
Such a conclusion does
com
pletely dispose
of this
which the trial
granted, instead of
defendant’s motion
denied,
for a
may grant
This is
trial.
because a trial court
new trial
because of an error
admission
testi
mony, regardless
proper objection,
of whether
ex
counsel. ‡
ception or motion was made
It is still,
required,
that there
however,
must have been a sub
stantial and
error,
next discussed.
grant
properly
2. A trial
can
a new trial in such
only
a case
when there has been substantial and
prejudicial error. The inadvertent mention
in-
*7
† Thus,
City
Portland,
in Bennett v.
of
surance in this case was not substantial dicial error. fact that de- holds that “where the unintentionally injected
fendant is insured has been grant held that whether not to into the ease we have or mistrial is within the discretion of the trial court,” quoting from Johnson v. and Blake v. Webster Or- supra. appears This to in accord be with
chards, that under contention Blake defendant’s Webster the or denial of a new trial Orchards “largely uncontrolled” discretion of within the the only judge and will be reversed for a manifest discretion. abuse of that the authorizes of a 17.610 new
ORS following any materially causes af trial “for rights party: fecting such substantial Irregularity proceedings “(1) in the of the party, any adverse or or order of the court, court, party abuse of which such discretion, having prevented a fair from trial. " [*] [*] [*] * * occurring “(7) Error in law at the trial, and making party application.”
excepted to does not contend this defendant that the In of insurance a witness in mention re inadvertent question “irregularity sponse was an (1). proceedings” under 17.610 Instead, ORS de for a trial contended that fendant’s mistrial motion for its denial of on made witness, cross-examination, defendant’s “error(s) was an law oc reference excepted curring the trial defendant,” at under 17.610 ORS
él 9' recognized this It true that court has granting largely of a new trial rests within the judge, Armstrong sound discretion of the trial Stegen, (1968), and that requires stronger showing it a clearer case or to au- granting thorize a reversal of an order a new trial overruling than it does to reverse an order a motion for a Nash, new trial. Burrows v. 121, 259 recently the other this
On court held more hand, Lawrence, McIntosh v. 569, 572, (1970), reversing granting of a new trial that: “* * * may granted only A new trial be where finding by
there is a basis the trial * * *” prejudicial substantial error. day in this Indeed, of crowded trial it dockets, is inconsistent with the efficient administration of justice granting to tolerate the any of a new trial in alleged case for errors of law, in this case, unless finding by “there is a basis for a the trial substantial error.” leading
In case of Timmins v.
Hale,
Or pointed
been held that the of a new trial was not matter of discretion; that an order for the re- hearing of a cause could not be except sanctioned *9 * * *."
when the court had committed some error (Emphasis added) (at p 32)
This court in Timmins then held although may grant despite the trial court a new trial objection exception by the absence or counsel: “* * * before the court is act, authorized to the error must have been have and it must prevented party in whose interest power having fairly pre- is invoked from his case sented and and we think tried, it must have been seasonably an error which if the matter had been called to the attention of the court and an adverse ruling exception made and an taken, would have justify judg- been sufficient to the reversal of the * * *” upon appeal; ment Finally, p this in court held, Timmins at 33: grounds provided other “There are setting judgment statute for the aside of a and the granting granting of a new trial in the of which discretionary power. the trial court exercises a But as to the matters to, hereinbefore referred and, namely, setting judgment grant aside a ing occurring a new trial because errors law upon in granting trial, in court the motion setting judgment upon aside the his own motion discretionary power, exercises no for in such case by positive the court is controlled rules of law. * * *" (Emphasis added) Although intervening years in the since Timmins expressions” by there have been some “loose this giving impression of a return to the old rule that granting discretionary, or denial of a new trial is alleged even for errors of the court has law, continued recognize analysis. the correctness of this See, for example, Arthur v. Parish, 150 and Foxton v. Woodmansee, 284-86, (1933). · P2d as in Timmins, we reversed Thus, Foxton, the cause with of a trial and remanded judgment instructions to enter on the verdict and doing rejected (at p 284) “in so the contention that view the Trial of its discretion in Court’s exercise proper approach a new trial, the should have been whether it had its discretion,” to determine abused “conduct(s) search rather than to its as if it were looking again for reversible error.” The court also 285-86) approval (at pp quoted with the rule as previously In turn, stated Timmins. we cited Foxton *10 authority holding in for our more recent McIntosh supra, again in which we Lawrence, v. reversed the granting (at new of a trial for the defendant and held p 572) may granted only “a new trial be where finding by there is a basis for a the trial of substantial error.” apply
Now to
these well-established rules to a
involving
case
the inadvertent mention
insurance
of
response
proper question.
defendant’s witness in
to a
· In Arthur v.
Parish,
(1935),
For these it follows that because the trial reasons, denying defendant’s did not commit error in alleged motion for for mis- mistrial, that some (the inadvertent mention of insurance de- proper question) fendant’s witness properly cannot an be contended to be “error of law” purpose determining for the whether defendant’s granted motion for a new trial should have been my denied. It also that the trial follows, view, discretionary power grant in this case had no new trial, but that because it committed no error in the denial of defendant’s motion for it mistrial, could properly enter an order a new trial on Timmins, ground. as in Thus, Foxton and Mc- Intosh, that order should be reversed with instructions judgment *11 to enter on the verdict. previous
For these same our reasons, decision in supra, application Orchards, Blake v. Webster has no prompt- for mistrial to this case. motion was made ly with that in that no contention defendant had right by failing move for a waived its to mistrial to (cid:181) cases cited in note 15. See also any timely objections proper or motions of make importance, in Blake did no this court more kind. Of deny to a that it was not error more than to hold in which there had been in a case motion for mistrial In words, mention of insurance. other an inadvertent the trial had a the statement in Blake grant, “largely to as well uncontrolled” discretion as deny, upon a based the inad- to a motion for mistrial is than vertent mention of insurance no more dictum. quotation At statement least, support in this case does not its conclusion equal grant, discretion that a trial has as well deny, ground, motion for a new trial on such a particularly after denial of the motion for mistrial on ground. the same clearly distinguishable Blake is
It follows that controlling over result in this case. not appears In this case it also from the record that judge may the trial have been misled what also must have been an “inadvertent” statement counsel supra, to the effect that Blake v. Orchards, Webster case,” was an “almost identical and that the trial previously in that As was reversed case. how noted, an “identical ease” Blake for the ever, reason that in Blake this court denial of a affirmed ground. As mistrial on that stated in Stanich v. Buckley al, 126, 129, et “* * * duty [I] t is our to reverse the trial court if based the order an conception of the law.” erroneous mention 3. The inadvertent defend- proper question witness in ant’s is not error so as to be a itself *12 ground either a mistrial aor new trial in the absence other facts. long my
In addition, time is overdue, view, for this court to re-examine the rule as stated in supra, Blake v. Orchards, Webster whether considered recognize as dictum or and not, that the inadvertent mention of insurance a defendant’s witness in re sponse question proper to a is not of itself proper error so as to be a or sufficient for the granting of either a motion for a mistrial or for a new facts. n at least the absence of other trial, recognized At the it must also be outset, that one dealing question of the difficulties in with this is that problems: (1) impropriety it involves two different attorney deliberately in the conduct of an who intentionally brings insurance into a case for an im- proper purpose, (2) possible prejudice jury as a result of the mention of insurance. attorney guilty an
When of misconduct de- liberately bringing insurance a into case for an im- proper purpose, proper, of a mistrial is possible prejudice jury, so much because of to the “prophylactic” discourage but as a so-called rule to improper by attorneys. such conduct When, however, particularly the mention of insurance is inadvertent, when the fact of insurance is mentioned in proper question, impropriety no in the conduct of question possibility counsel is involved. The of the prejudice from the mention of insurance, how- may the same ever, be whether fact of insurance inadvertently improper mentioned or as the result of by counsel. conduct n In Johnson v. 389 P2d O’Connell, specially concurring in a opinion, Justice “re-appraisal bugaboo.” also called for a of this insurance
4S5 greater importance, is the fact that however, Of majority the rule as stated to be the applied denial of a test to be adopted by the and which would also be mistrial, applied in this case as test in the to be *13 denial for a new trial, or of motion even after the denial of a is a rule in mistrial, which, effect, presumes prejudicial to be even the inadvertent men by tion of insurance a witness in question, “any countering in the absence of influences special knowledge that arise from his own of the con ditions in his courtroom.” n by
It is true that such a test had been stated
this
court in
Hansen,
Johnson v.
1,
237 Or
6,
defendant is if a learns that the defendant has insurance. Johnson v. Hansen, 16-18, 237 Or There is 330, 390 many jurors a belief assume that the defendants surance. Almost all most tort cases are covered in- jurors carry automobile insur- many jurors carry general liability ance and desirability prevalence insurance. The of hav- ing protect against many insurance to forms of liability widely advertised the insurance in- dustry.
“Because the effect of the intro- duction of evidence that the defendant is insured is heavy mandatory penalty of a doubtful, mis- *14 unintentionally injected trial when insurance is is necessary.” not deemed recently, DeSpain
More
in
Bohlke,
v.
259
320,
(1971),
323,
“Looking now at the other side of the scale—the prejudice probability resulting of to defendant plaintiff’s inquiry it be said from inquiry that the —can prejudicial had a effect? There is substan- adjudicated support in the cases as tial the texts well as in legal periodicals for the view
and the
427 the effect upon has little of insurance mention Muehlebach in example, For verdict. jury’s Inc., and Chapel, Mortuary 60, Mercer 93 Ariz 378 ‘the court said 744 insurance is reference to liability of a content in has, part, And it of the largely thing past. of expenditure of the thing past been made insurance money companies of vast sums claimed relation of the jurors educate prospective insurance rates.’ verdicts and large between advertising such “Even the influence of without in most juror would, it likely average is insured. Wig- that defendant was assume cases, of nondis- abolition advocating in more, as follows: rule makes note of this point closure is liability-insurance ‘In the second place, and for cer- many made States compulsory cases the hence, tain classes such liability; the law. notorious under fact of insurance is and compul- ‘In third from place, apart of lia- insurance, sory general prevalence injuries, automobile bility to forbid to the hence for law jurors; known in the course of the trial any disclosure it fu- hypocritical seems to be merely piece 146 282a at tility.’ (3d Evidence Wigmore, § 1940). ed theme runs a number the cases through
This
**
*”
rule.
criticizing the nondisclosure
courts
An
other
examination
opinions
v. Hansen
Johnson
was decided in 1964,
states
since
this view. n
Indeed,
it
now more
fully
likely
confirms
n E.
Noland,
Jones
Co. v.
Ariz
L.
Construction
(1970) (quoting
approval
with
from Muehlebach v. Mercer
Mortuary
Inc.,
(1963));
Chapel,
Ariz
(Sup
Sanky,
prejudiced party by of the fact disclosure by carry that he does not than the fact that insurance, he does so. equal significance
Of
is the fact
in actual
practice this court has never reversed a trial court for
denying a motion for mistrial
the inadvertent men
response
tion of insurance
a defendant’s witness in
proper question, n
invariably
but has
affirmed
judges
denying
motions for mistrial
such
cases. n Neither has this court ever had occasion to
Syracuse
(1970);
92,
(1964);
Notes 16
L Rev
98-100
Notes 70 Dick
64,
(1965);
ALR2d, supra
L Rev
78-80
cited in 4
cases
note
(1971
6,
Supp).
special concurring
12
For earlier cases
§
see
opinion
1,
Justice
9,
O’Connell in Johnson v.
Or
237
(1964).
330,
P2d
811
389
390 P2d
n
No such case has been cited
counsel and further research
has revealed none.
n
Oregon
affirming
cases
trial,
the denial of a motion for new
discharge
or mistrial or to
reference to
because of an inadvertent
proper ques
a witness in
ato
DeSpain
tion
Bohlke,
include:
320,
v.
259
(1971);
(1968);
Or
486
545
Orchards,
Blake
348,
v. Webster
249 Or
proper question, that the vehicle had shown to been him stating adjuster,” adjuster. “insurance without whose insurance adjuster suggestion no There was had made any any liability offer of settlement or had made admissions of adequate of insurance or quate amount was either or inade cover amount of the claim.
be covered some kind of insurance. As stated (237 6): supra this court in Johnson v. Or at “* * * complaining The burden is party probability right to show some real that his impaired. showing a fair has trial was No such * * *” been made in this case. It follows that of a new trial denying previously properly this case, after contrary past practice motion for mistrial, was *17 precedent Oregon. by affirming It also follows that of new trial in because of the bare and advertent wit mention a defendant’s proper question, ness in to which no ob jection prompt or motion to strike was made and no previously denying motion for and after mistrial, subsequent motion for mistrial, would give contrary its sanction a rule which is to the great weight authority, of recent as well as the actual practice by state, the courts of this both trial and appellate. my judgment, bugaboo”
In the “insurance en majority opin hanced, rather than diminished, places “largely ion and it uncontrolled discretion” higher peak pree the trial court on an even minence. n To approve setting aside contrary past practice, verdict in this to uniform goal justice equal is also a retreat from the under law. respectfully
For all of these I reasons, must dissent. joins Justice, Chief in this dissent. O’Connell, n Bowl, Inc., D Cf. Yundt D &