Garber v. Martin

494 P.2d 858, 261 Or. 410, 1972 Ore. LEXIS 313

• Court: Oregon Supreme Court
• Decided: March 1, 1972
• Status: Published

Opinions

DENEGUE, J.

The plaintiff recovered a verdict in his personal injury action. The trial court granted defendants’ motion for new trial. Plaintiff appeals.

One of the grounds for new trial was the injection of insurance on cross-examination by a witness called by defendants. The trial court, when granting the new trial, stated that when the four grounds urged to be the basis for the motion for new trial were considered together, “and particularly the injection of insurance into the case, even though involuntarily done, it is my opinion that defendants did not get a fair trial * * *."

When the fact that the defendant is insured has been unintentionally injected into the case we have held that whether or not to grant a mistrial is within the discretion of the trial court.

“* * * Judicial discretion in such a situation properly balances whatever prejudice might have occurred against all the other relevant factors present in a particular case. The judge must weigh against an inference that prejudice actually resulted any countering influences that arise from his own special knowledge of the conditions in his courtroom. The record discloses no reason to believe that the judge failed to exercise his discretion judiciously in this case. A mistrial could have been granted, but its denial was not an abuse of discretion.” Johnson v. Hansen, 237 Or 1, 6, 389 P2d 330, 390 P2d 611 (1964).

"* * * If insurance is not relevant, but has come into the ease through inadvertence, whether or not to grant a mistrial is in the discretion of the trial court. Denton v. Arnstein, 197 Or 28, 54-56, 250 P2d 407 (1952). This discretion is largely uncontrolled by this court. We permit the trial court to decide whether or not prejudice has been created. Wells v. Morrison, 121 Or 604, 256 P 641 (1927).” Blake v. Webster Orchards, 249 Or 348, 354-355, 437 P2d 757 (1968).

The dissenting Justices in DeSpain v. Bohlke, 259 Or 320, 329, 486 P2d 545 (1971), would go further:

“The unnecessary injection of insurance, be it intentional or inadvertent, is prejudicial and ground for a mistrial unless the court can point to some special circumstance negating the likelihood of prejudice.” 259 Or at 331.

In the instant case it is not necessary to take the step urged by the dissenters. The trial court found the unintentional injection of insurance was prejudicial and deprived the defendant of a fair trial and it, therefore, should have granted a mistrial. Such a finding and ruling were within its discretion.

Affirmed.