BROWN, J.
This appeal raises but one principal question. That question involves tbe evidence adduced by plaintiff, to tbe effect that tbe defendants were protected by indemnity insurance.
Tbe record discloses that, on plaintiff’s cross-examination, be testified, in response to counsel’s inquiry, that be bad bad a conversation with defendant Jaloff on tbe day after tbe accident. On bis redirect examination, be testified as follows:
“Q. You bad a talk with Mr. Jaloff? A. Yes, sir.
“Q. Wbat was said at that conversation? A. Well, I went to see Mr. Jaloff in regard to the wrecking of my car tbe next day after tbe accident.
* *
“Q. Wbat was said by Mr. Jaloff concerning tbe accident? A. We were discussing tbe accident and I asked him wbat be was going to do about paying for tbe car, and be said, ‘Well, Mr. Wells, while we think tbe third party was partly tbe cause of this accident,’ be says, ‘we are responsible for your car’; and be says, ‘Our insurance will have to take care of your car.’ He says, ‘I am insured, and it does not cost me; it is tbe insurance company that will have to pay this bill.’ ”
After this testimony was in tbe record, defendants’ counsel said:
“If tbe court please, I at this time ask that tbe case be dismissed and tbe jury be discharged.
“Tbe Court: That testimony, gentlemen of tbe jury, with reference to any conversation about insurance, about tbe car being insured, is stricken from tbe record, taken from tbe case, and must not, under any circumstances, be considered by you in arriving at your verdict. I want this made very clear and distinct to you: That any statement with reference to any insurance on tbe car, or anybody else having to pay on account of that insurance, is taken away from tbe case and stricken out, and under no circumstances must you in your deliberations consider that, or in any way take it into consideration.
“Mr. Silverman: If the court please, I again wish, for the purpose of the record, to object to all of this testimony and to ask the court that this case be announced as a mistrial, and that the jury be discharged from the further hearing of this case.
“The Court: You have already made that motion, and I have ruled upon it.”
There is no hard-and-fast rule that requires the court to penalize a plaintiff by directing a mistrial because evidence that the defendant is protected by indemnity insurance has gotten to the jury. However, this court has repeatedly held that, where the plaintiff in a personal injury case by questionable practice gets before the jury the fact that the defendant is protected by indemnity insurance, upon proper application the trial court should penalize him by directing a mistrial:
Tuohy
v.
Columbia Steel Co.,
61 Or. 527, 531 (122 Pac. 36);
Putnam
v.
Pacific Monthly Co.,
68 Or. 36 (130 Pac. 986, 136 Pac. 835, Ann. Cas. 1915C, 256, 45 L. R. A. (N. S.) 338);
Cameron
v.
Pacific Lime & G. Co.,
73 Or. 510 (144 Pac. 446, Ann. Cas. 1916E,
769); Vasquez
v.
Pettit,
74 Or. 496 (145 Pac. 1066, Ann. Cas. 1917A, 439);
Walling
v.
Portland Gas & Coke Co.,
75 Or. 495 (147 Pac.
399); Sanders
v.
Taber,
79 Or. 522 (155 Pac. 1194);
Jones
v.
Sinsheimer,
107 Or. 491 (214 Pac. 375);
Lidfors
v.
Pflaum,
115 Or. 142 (205 Pac. 277, 236 Pac. 1059); C
oblentz
v.
Jaloff,
115 Or. 656 (239 Pac. 825);
Rosumny
v.
Marks,
118 Or. 248 (246 Pac.
723); Ross
v.
Willamette V. T. Co.,
119 Or. 395 (248 Pac.
1088); Melcher
v.
Connell,
119 Or. 626 (250 Pac. 742).
It will be remembered that, when the plaintiff testified in chief, there was no intimation that he had had a conversation with defendant Jaloff, but, after the subject of the conversation had been opened by defendants’ counsel on cross-examination, in his re
direct examination plaintiff’s counsel sought to prove this defendant’s declaration against interest. See Or. L., § 727, subd. 2.
Our statute provides that, when part of a conversation is given in evidence, the whole conversation on the same subject may be given. This, however, is conditioned upon the competency and materiality of the remainder of the conversation:
State
v.
Mack,
57 Or. 565 (112 Pac. 1079);
Richey
v.
Robertson,
86 Or. 525 (169 Pac. 99);
State
v.
Weston,
109 Or. 19 (219 Pac. 180).
That part of this plaintiff’s testimony relating to the insurance on his car had no tendency to prove any issues in the cause, and was promptly and properly stricken from the record, and the jury instructed to refrain from considering the same while deliberating upon their verdict.
In their brief, the defendants cite
Tuohy
v.
Columbia Steel Co.,
61 Or. 527 (122 Pac. 36), as the leading Oregon case on this point. Prom the opinion in that case, we quote:
“It has been frequently held that a willful attempt by a plaintiff in a personal injury case to show that the defendant was protected by insurance constitutes reversible error. * * But the rule is not universal.”
There is no evidence in the record of this case that tends to show a wilful attempt upon the part of plaintiff to adduce incompetent evidence upon the trial of the cause. The inquiry put to the witness was competent, and the witness answered it without objection. The witness was a layman, a farmer, and ought not to be condemned because he was not familiar with the rules of evidence. As to when and under what circumstances a 'party should be penalized, as sought by the defendants in this case, Mr.
Justice Chadwick, in
Jensen
v.
Schlenz,
89 Wash. 268 (154 Pac. 159), says:
“The extent of our holding is that if it be apparent that counsel deliberately sets about, although in an indirect way, to inform the jury that the loss, if any, will fall upon an insurance company instead of the defendant, his conduct will be held prejudicial. * * If such information comes about naturally and is an incident to a lawful inquiry there can be no error. If it is injected in a collateral way, it is held to be harmful. The gravamen of the offense is not in the disclosure of a collateral fact, but in the manner of its disclosure, that is, the misconduct of counsel.”
The defendants’ contention is fully met by this court in the case of
Melcher
v.
Connell,
119 Or. 626, (250 Pac. 742), a case wherein the testimony developed the fact that the defendant was insured. In that case, Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
BROWN, J.
This appeal raises but one principal question. That question involves tbe evidence adduced by plaintiff, to tbe effect that tbe defendants were protected by indemnity insurance.
Tbe record discloses that, on plaintiff’s cross-examination, be testified, in response to counsel’s inquiry, that be bad bad a conversation with defendant Jaloff on tbe day after tbe accident. On bis redirect examination, be testified as follows:
“Q. You bad a talk with Mr. Jaloff? A. Yes, sir.
“Q. Wbat was said at that conversation? A. Well, I went to see Mr. Jaloff in regard to the wrecking of my car tbe next day after tbe accident.
* *
“Q. Wbat was said by Mr. Jaloff concerning tbe accident? A. We were discussing tbe accident and I asked him wbat be was going to do about paying for tbe car, and be said, ‘Well, Mr. Wells, while we think tbe third party was partly tbe cause of this accident,’ be says, ‘we are responsible for your car’; and be says, ‘Our insurance will have to take care of your car.’ He says, ‘I am insured, and it does not cost me; it is tbe insurance company that will have to pay this bill.’ ”
After this testimony was in tbe record, defendants’ counsel said:
“If tbe court please, I at this time ask that tbe case be dismissed and tbe jury be discharged.
“Tbe Court: That testimony, gentlemen of tbe jury, with reference to any conversation about insurance, about tbe car being insured, is stricken from tbe record, taken from tbe case, and must not, under any circumstances, be considered by you in arriving at your verdict. I want this made very clear and distinct to you: That any statement with reference to any insurance on tbe car, or anybody else having to pay on account of that insurance, is taken away from tbe case and stricken out, and under no circumstances must you in your deliberations consider that, or in any way take it into consideration.
“Mr. Silverman: If the court please, I again wish, for the purpose of the record, to object to all of this testimony and to ask the court that this case be announced as a mistrial, and that the jury be discharged from the further hearing of this case.
“The Court: You have already made that motion, and I have ruled upon it.”
There is no hard-and-fast rule that requires the court to penalize a plaintiff by directing a mistrial because evidence that the defendant is protected by indemnity insurance has gotten to the jury. However, this court has repeatedly held that, where the plaintiff in a personal injury case by questionable practice gets before the jury the fact that the defendant is protected by indemnity insurance, upon proper application the trial court should penalize him by directing a mistrial:
Tuohy
v.
Columbia Steel Co.,
61 Or. 527, 531 (122 Pac. 36);
Putnam
v.
Pacific Monthly Co.,
68 Or. 36 (130 Pac. 986, 136 Pac. 835, Ann. Cas. 1915C, 256, 45 L. R. A. (N. S.) 338);
Cameron
v.
Pacific Lime & G. Co.,
73 Or. 510 (144 Pac. 446, Ann. Cas. 1916E,
769); Vasquez
v.
Pettit,
74 Or. 496 (145 Pac. 1066, Ann. Cas. 1917A, 439);
Walling
v.
Portland Gas & Coke Co.,
75 Or. 495 (147 Pac.
399); Sanders
v.
Taber,
79 Or. 522 (155 Pac. 1194);
Jones
v.
Sinsheimer,
107 Or. 491 (214 Pac. 375);
Lidfors
v.
Pflaum,
115 Or. 142 (205 Pac. 277, 236 Pac. 1059); C
oblentz
v.
Jaloff,
115 Or. 656 (239 Pac. 825);
Rosumny
v.
Marks,
118 Or. 248 (246 Pac.
723); Ross
v.
Willamette V. T. Co.,
119 Or. 395 (248 Pac.
1088); Melcher
v.
Connell,
119 Or. 626 (250 Pac. 742).
It will be remembered that, when the plaintiff testified in chief, there was no intimation that he had had a conversation with defendant Jaloff, but, after the subject of the conversation had been opened by defendants’ counsel on cross-examination, in his re
direct examination plaintiff’s counsel sought to prove this defendant’s declaration against interest. See Or. L., § 727, subd. 2.
Our statute provides that, when part of a conversation is given in evidence, the whole conversation on the same subject may be given. This, however, is conditioned upon the competency and materiality of the remainder of the conversation:
State
v.
Mack,
57 Or. 565 (112 Pac. 1079);
Richey
v.
Robertson,
86 Or. 525 (169 Pac. 99);
State
v.
Weston,
109 Or. 19 (219 Pac. 180).
That part of this plaintiff’s testimony relating to the insurance on his car had no tendency to prove any issues in the cause, and was promptly and properly stricken from the record, and the jury instructed to refrain from considering the same while deliberating upon their verdict.
In their brief, the defendants cite
Tuohy
v.
Columbia Steel Co.,
61 Or. 527 (122 Pac. 36), as the leading Oregon case on this point. Prom the opinion in that case, we quote:
“It has been frequently held that a willful attempt by a plaintiff in a personal injury case to show that the defendant was protected by insurance constitutes reversible error. * * But the rule is not universal.”
There is no evidence in the record of this case that tends to show a wilful attempt upon the part of plaintiff to adduce incompetent evidence upon the trial of the cause. The inquiry put to the witness was competent, and the witness answered it without objection. The witness was a layman, a farmer, and ought not to be condemned because he was not familiar with the rules of evidence. As to when and under what circumstances a 'party should be penalized, as sought by the defendants in this case, Mr.
Justice Chadwick, in
Jensen
v.
Schlenz,
89 Wash. 268 (154 Pac. 159), says:
“The extent of our holding is that if it be apparent that counsel deliberately sets about, although in an indirect way, to inform the jury that the loss, if any, will fall upon an insurance company instead of the defendant, his conduct will be held prejudicial. * * If such information comes about naturally and is an incident to a lawful inquiry there can be no error. If it is injected in a collateral way, it is held to be harmful. The gravamen of the offense is not in the disclosure of a collateral fact, but in the manner of its disclosure, that is, the misconduct of counsel.”
The defendants’ contention is fully met by this court in the case of
Melcher
v.
Connell,
119 Or. 626, (250 Pac. 742), a case wherein the testimony developed the fact that the defendant was insured. In that case, Mr. Justice Rand, speaking for the court, said:
“The question propounded to the witness was a pertinent and proper one, and did not call for any improper response by the witness. His reference to the insurance company was not elicited by plaintiff’s counsel, but was volunteered by the witness himself, without any fault or prearrangement of plaintiff. _ The court very promptly instructed the jury .to disregard that part of the answer. The injuries sustained by the plaintiff were very substantial, the verdict was not excessive, and we cannot find in the record anything tending to show that the jury was improperly influenced, or in any way prejudiced by the unwarranted and unsolicited statement of the witness, or anything else occurring upon the trial sufficient to bring the case within the operation of the rule followed in the cases cited by defendant. Since the jury was instructed by the court to disregard the improper statement, the case more properly falls within the rule announced and followed in
Jones
v.
Sinsheimer,
107 Or. 491, 495 (214 Pac. 375), and
Coblentz
v.
Jaloff,
115 Or. 656, 664 (239
Pac. 825). For that reason, no other error being assigned, the judgment will he affirmed.”
From a careful perusal of the record in this case, the writer is constrained to believe that the verdict rendered herein is not the result of passion or of prejudice, hut that it is the finding of a jury upon a fair and impartial trial.
It is a general rule that, where the record does not clearly establish that the finding of the jury is contrary to the instructions of the court when considered as a whole, the presumption prevails that the jury followed the charge, and that the verdict is right:
Western Grain Co.
v.
Beaver Land Stock Co.,
120 Or. 678 (253 Pac. 539);
Aetna Indemnity Co.
v.
J. R. Coal & Mining Co.,
154 Fed. 545;
Gregory
v.
Morris,
96 U. S. 619 (24 L. Ed. 740).
This case is affirmed.
Affirmed. Rehearing Denied'.
Bean and Belt, JJ., concur.