I am unable to agree with the conclusion which has been announced by the majority opinion. The accident in question occurred on a public highway, the center of which constitutes the outside limits of the city of Cushing. *Page 36 It was a bad accident, and it is conceded that plaintiff has suffered intensely and has sustained permanent injuries.
In my opinion every fact points to the liability of the defendant L.P. Leonard. If said defendant was acting as the agent of the Globe Oil Refining Company at the time of the accident, then the refining company was also liable, unless it be that the incidental disclosure tending to show that the refining company may have been protected by a policy of insurance, having been injected into the trial, was prejudicial to the rights of the defendants and influenced the verdict of the jury.
Plaintiff cannot recover from the refining company unless the defendant Leonard was performing some duty for his master at the time of the accident. This was a vital question of fact for determination. The defendant Leonard was called as a witness on behalf of the plaintiff, and testified as follows:
"Q. For what purpose had you gone to the supply house? A. Just for to loaf awhile. I had no company business there whatever."
The record supports the view that this answer came as a surprise to counsel for plaintiff, because, prior to the time of the trial, he had been advised that Leonard had specifically admitted that at the time of the accident he was on a mission of his company, For the purpose of impeachment, the defendant Leonard was then interrogated as to whether he, had made a statement before J.E. Jones, the father of plaintiff, and also before E.E. Moler, at the refinery at Cashing, after the answer had been filed in this case by the refining company, to the effect that he was returning from a supply house at the time of the accident, in the performance of his duties for the refining company, and that this information had been sought from him on account of the fact that the refining company land alleged in its answer that he was not engaged in any duties or business of the refining company at the time of the accident in question. The witness denied that he had made any such statement.
On account of this denial on the part of the defendant Leonard, counsel for plaintiff thereafter called J.E. Jones, who testified that Leonard had informed him that he was on business for the company at the time of the accident. Jones also testified that he had reported this conversation which he had with, Leonard to counsel for plaintiff.
The witness Moler was also called in behalf of plaintiff, and he, testified to a similar conversation which he heard between Jones and Leonard, as follows:
"Q. State what you heard said. A. Mr. Jones, about the first of the conversation, says `Mr. Leonard the insurance people' or whatever they were, 'state that you were just driving around on your own account for your own pleasure when that accident happened.' Did you want this conversation like it was?"
This answer was struck from the record by the court, and the jury was instructed not to consider the same for any purpose. The witness was then asked to state what was said at that time. The following answer was given:
"Mr. Jones says 'The insurance company,' if I remember right, 'claims that you were out riding around on your own account and wasn't on any business for the company whatever.' And he says 'The bell they did, By-God I was on company business'."
Counsel for defendants objected to this answer, and thereupon moved the court to strike the same from the record, and also moved the court to declare a mistrial and discharge the jury. The court overruled those motions. Thereafter the following question was asked:
"Q Did he say insurance company or refining company, which, was it, he said?"
Counsel for defendants objected to this question. The record shows as follows:
"A. Well, I can't say that. I might have called that wrong, because I supposed it was insurance, and they was taking care of it, Q. I am asking you what the conversation was and leave that out if there wasn't anything said about it. By the Court: They are not asking you for suppositions, they are asking you for conversations. Nothing else. By Mr. Thurman: The defendants renew their motion to declare a mistrial and discharge the jury."
It is to be observed that counsel for defendants made no request of the court to strike this testimony. The witness specifically, stated that Leonard might have said "insurance company" instead of the "refining company," because the witness supposed that the insurance company was taking care of the litigation. In the final analysis there was no statement of fact that any one had said that any insurance company was taking care of the litigation.
Plaintiff had the right to make the lawful inquiry in question, in the absence of bad faith, and to introduce any competent evidence, upon any issue arising during the trial against any defendant in the case. The questions relating to impeaching the witness *Page 37 Leonard as to his former statements were clearly competent and were directed to a valid and highly controversial issue, to wit, as to whether the defendant Leonard was on an errand or mission of the Globe Oil Refining Company at the time of the accident. The weight and credibility of a witness in a law action are peculiarly within the province of the jury.
It appears, that well-reasoned authorities, in considering the question of the negligence of the driver in automobile cases, support the view that when a material allegation in a petition or an answer is at issue, evidence may be offered to substantiate such an allegation, and that such evidence is competent and admissible, even though as an incident to its production it is disclosed that the defendant is protected by insurance. See 56 A. L. R. 1448; 74 A. L. R. 854; Southern Pacific Co. v. Schoer (C. C. A.) 114 F. 466. 57 L. R. A. 707; Steinman v. Brownfield (Mo. App.) 18 S.W.2d 528; Fletcher v. Saunders, 132 Or. 67, 284 P. 276; Dermer v. Pistoresi et al. (Cal.) 293 P. 78 (cross-examination to lay foundation for impeachment); Knutzen Motor Trucking Co. v. Steiner, 31 Ohio App. 46,166 N.E. 243; Jimmie Guest Motor Co. v. Olcott (Tex. Civ. App.) 26 S.W.2d 373; O'Connor v. Sioux Falls Motor Co. (S.D.) 232 N.W. 904; Fleming v. Flick et al. (Cal.)35 P.2d 210; Rowe v. Rennick (Cal.) 297 P. 603; Elsey v. Domecq et al. (Cal.) 299 P. 794 (re. — Question to impeach witness regarding former statement); 4 Blashfield, Cyc. of Automobile Law, sec. 19, p. 1521; Cook-O'Brien Co. v. Crawford,26 F.2d 574.
In view of the foregoing authorities, it seems to me that too much technical importance has become attached to the disclosure of insurance in ordinary actions of tort which relate to the negligent driving of an automobile. There probably was a time in the early history of the operation of automobiles that a reference or an inference to the effect that the defendant might be protected by a policy of insurance would have some tendency towards prejudicially influencing the verdict of the jury. But it is almost common knowledge today, which is shared in by the average juror, that many operators of automobiles are protected by insurance policies. Jurors are sworn to try the case in accordance with the facts and the law applicable to those facts under the instructions of the trial court, and it seems to me that there is no sound reason why the average juror cannot perform to the full extent his obligatory and sworn duty in a case of this character. See Rinklin v. Acker, 109 N.Y.S. 125; Dermer v. Pistoresi et al., supra, p. 79 of 293 P.
In this kind of case there can be no prejudice in the verdict of the jury except where the question of negligence is closely balanced or doubtful, and it can have no place in the mistrial of such a cause unless it appears that but for the reference a verdict might have been rendered equally as well for the plaintiff as for the defendant. Fleming v. Flick et al. (Cal.)35 P.2d 210, 218.
In the instant case, in my opinion, the evidence touching the question of negligence as to the defendant Leonard is not remotely close. There is no intimation that the damages are excessive or disproportionate to the injuries sustained. As I view this record, there was some seeming color of abruptness in the course of the trial in the colloquy between the court and counsel for the defendants, but the error complained of in this case relative to the disclosure of insurance is entirely too technical to justify the judgment of a reversal.
The rule announced in the fifth paragraph of the syllabus in the case of Lakeview, Inc., et al. v. Davidson, 166 Okla. 171,26 P.2d 760, is the proper rule to apply in this case. The syllabus in the case of Yoast v. Sims, 122 Okla. 200,253 P. 504, should have no application in this case. In that case the majority opinion arrives at the correct conclusion, but the syllabus, in my opinion, does not properly reflect the law in that case.
As to the Globe Oil Refining Company, the merits of the entire controversy centered upon the question of whether the defendant Leonard was performing any duty for said company at the time of the unfortunate accident. The impeachment questions were legitimate examinations, and it appears to me that the trial court did not abuse its discretion in refusing to grant a new trial. For these reasons, I respectfully dissent.
I am authorized to announce that Mr. Vice Chief Justice OSBORN concurs in this dissent. *Page 38