In this case the defendant Jaloff was operating a motor-bus as a common carrier over the Columbia River Highway between Hood River and Portland and the defendant Morrison was his chauffeur in actual control of the same. The plaintiff brought this action against both of them to recover damages arising out of a collision at Cascade Locks between the bus and an automobile owned by the plaintiff. The answer challenged the ownership and value of the car and all other averments of the complaint imputing blame to the defendants. The plaintiff appeared as a witness on his own behalf. He was not present when the accident occurred but he described the automobile and its condition after the collision and some marks on the *Page 611 ground where the accident occurred. He also told about the use of his car in his business and gave his estimate of the value of that use and of the car itself. He testified that the car was a model of the year 1920. He made no allusion in his direct examination to any conversation with the defendant Jaloff. On cross-examination he told of whom he bought the car and again asserted that it was a 1920 model. The following questions and answers then occurred in his cross-examination:
"Q. Did you have any talk with Mr. Jaloff or any of his agents with regard to the kind of a car it was and the year model it was? A. I talked to Mr. Jaloff the next day after the accident.
"Q. Didn't you tell him it was a 1917 model? A. I did not."
His own counsel then put the following questions and he gave the answers on redirect examination:
"Q. You had a talk with Mr. Jaloff? A. Yes, sir.
"Q. What was said at that conversation? A. Well, I went to see Mr. Jaloff in regard to the wrecking of my car, the next day after the accident.
"Q. That would be what date, then? A. The 18th of August.
"Q. What was said by Mr. Jaloff concerning the accident? A. We were discussing the accident and I asked him what he was going to do about paying for the car, and he said, `Well, Mr. Wells, while we think the third party was partly the cause of this accident,' he says, `We are responsible for your car,' and he says, `Our insurance will have to take care of your car.' He says, `I am insured, and it does not cost me; it is the insurance company that will have to pay this bill.'"
The defendants by their counsel objected to that answer as incompetent, irrelevant, immaterial and highly prejudicial and moved that the case be dismissed and the jury discharged. The court, quite at length, admonished the jury that the testimony *Page 612 about the insurance should not be considered and was stricken out of the case. Considerable discussion occurred on the subject but the court refused to dismiss the jury. Later, during the trial, the court again admonished the jury on the subject and gave quite a lengthy oral opinion.
Very many times this court has decided, and it is supported therein by the general consensus of authority, that it is greatly prejudicial error for a party to inject into a case the fact that the defendant in a damage case is insured. It is a violation of Section 725, Or. L., reading thus:
"Evidence shall correspond with the substance of the material allegations, and be relevant to the questions in dispute. Collateral questions shall therefore be avoided. It is, however, within the discretion of the court to permit inquiry into a collateral fact, when such fact is directly connected with the question in dispute, and is essential to its proper determination, or when it affects the credibility of a witness."
The question directly in dispute here is not whether the car is insured. What is to be determined here is whether the defendants were negligent in the operation of the motor-bus with the result that the plaintiff's car was injured as stated in the complaint. That the defendants were negligent is not affected by whether they were insured or not. It is urged by the plaintiff that this is permissible under Section 711, Or. L., reading:
"When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole, on the same subject, may be inquired into by the other; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." *Page 613
While it is true that the defendant brought out on cross-examination that the plaintiff had talked with Jaloff with regard to the kind and the year model of the automobile, that was the extent or subject of the talk as inquired about in the cross-examination. If anything else had been said in that conversation on the subject of the model or kind of car, the plaintiff would have been entitled to it under this rule, but he was not entitled to show that the defendants or either of them was insured in respect to that motor-bus. It is only the remainder of the dialogue on the same subject that the opposite party may put in evidence under the rule laid down in Section 711, supra.
It is also true that evidence may be given under Section 727, Or. L., of the declaration, act or omission of a party as evidence against such party, and under that rule the plaintiff was entitled to introduce this part of the conversation which he quoted in his answer:
"Well, Mr. Wells, while we think the third party was partly the cause of this accident, we are responsible for your car."
That was clearly an admission against the interest of Jaloff and to that extent the conversation was admissible as part of the plaintiff's case in chief, but that does not in any sense authorize the introduction of the testimony about the defendant being insured.
Some remarks have crept into our decisions indirectly imputing blame to counsel for such errors in the production of testimony. The real reason for rejecting the testimony is thus stated by Mr. Justice McBRIDE in Tuohy v. Columbia Steel Co., 61 Or. 527 (122 P. 36): *Page 614
"* * The ground for this holding is that a knowledge that the defendant has such protection might have a tendency to render jurors careless as to the amount of the verdict."
Another reason is that it is a collateral inquiry which may result in a half truth that the defendant was insured, leaving out of view the probability that the insurer has exacted indemnity from him for any loss incurred so that the judgment will in the end fall upon the defendant with added weight induced by the prejudicial testimony.
Further, to the extent, whatever it might be, that such testimony augmented the amount of damages, the insurer would be deprived of its property without an opportunity to be heard. On this point this language appears in Wiersema v. Lockwood etc.Co., 147 Ill. App. 33:
"Furthermore, the accident insurance company neither was nor could then be before the court, having a hearing in respect to the existence or the extent of its liability. Therefore, if the injury increased the amount of the verdict or if the decision of the jury upon the question of liability was influenced favorably to the plaintiff, in the slightest extent, because the insurance company stood back of the employer, who was in court making the defense, to reimburse it, then, to that extent, the insurance company was deprived of its property without due process of law — without a hearing. Manifestly such result would be not only erroneous but grossly unfair and unjust. The introduction of irrelevant matter of such possible evil tendency should be most scrupulously avoided by counsel and most carefully guarded against by the court."
It matters not whether the design of the party or his counsel is malevolent or innocent. The mischief is that the jury is tempted by such testimony to increase *Page 615 the damages because the burden will not fall directly upon the defendant. It is not necessary to establish in this case a school for penance either for counsel or his client, but the principle is clear that such testimony is grossly improper. So far as that is concerned in the instant case the question propounded by plaintiff's counsel did not necessarily call for the objectionable testimony. It was volunteered by the plaintiff himself; but it was prejudicially put into the case just as thoroughly as if it got there by the most consummate pettifoggery.
It seems difficult to stop the practice by our repeated decisions. The mischief is done the moment the fact is made to appear that the defendant is insured. As the slang phrase has it, the vinegar is then in the milk and cannot be taken out. An extended discussion, ruling and direction only serve in practice to make a bad matter worse and impress it more deeply in the prejudice of the jury. The remedy of directing the jury to disregard the testimony in a case like this where it was an inexcusable gratuity uttered by the plaintiff himself is not effective enough to repress the evil. It is like "unringing the bell," State v. Rader, 62 Or. 37, 40 (124 P. 195), where Mr. Justice McBRIDE wrote:
"It is contended that the court by its instruction withdrew this testimony from the jury, and therefore cured the error. While in some cases an express instruction to the jury to disregard testimony injuriously admitted is properly held to cure the error, yet the courts are cautious in the application of this rule. It is not an easy task to unring a bell, nor to remove from the mind an impression once firmly imprinted there, and the withdrawal of the testimony should be so emphatic as to leave no doubt in the mind of the juror as to the unequivocal repudiation *Page 616 by the court of the erroneously admitted matter, and even then, in a case where the testimony is evenly balanced or contradictory, courts hesitate to sanction such withdrawal, though it seems absolutely necessary to permit this course in some instances."
It leaves the door open for a plaintiff to get the fact of insurance to the ears of the jury and then with complaisancy take the adverse, but practically inert, direction of the court to ignore it.
In this connection, there is here set down the significant language of Mr. Justice BEAN in Rosumny v. Marks, 118 Or. 248,258 (246 P. 723), written within the last twelvemonth:
"An instruction by the court that the jury should disregard the matter of liability insurance cannot cure the prejudicial effect of the fact being brought to the attention of the jury. It is the duty of the trial court to penalize the party who argues matters not material and prejudicial to the case by discharging the jury:Vasquez v. Pettit, 74 Or. 496, 500 (145 P. 1086, Ann. Cas. 1917A, 439); Jones v. Sinsheimer, 107 Or. 491 (214 P. 375)."
All are agreed that the admission of such testimony, or in any way bringing to the attention of the jury the fact that the defendant is insured against the liability sought to be enforced in the action, is material error. The present question is what is the proper remedy to be applied to the correction of such shortcomings. Some contend that it is sufficient to direct the jury to disregard the testimony and that the presumption is that the direction of the trial court has been obeyed. The excerpt from the opinion of Mr. Justice BEAN in Rosumny v. Marks,supra, is clear on that point and is well supported. The reason justifying the rule there laid down is that the *Page 617 conduct of the parties or attorneys in that respect is a clear appeal to the prejudice of the jury. Prejudice is unreasoning, dogmatic, arbitrary and uncontrollable where it is impracticable to apply a penalty to those influenced by it. Once let such information get to the minds of a prejudiced jury, no matter in what manner, and there is no way to eradicate it. The juror himself is beyond control or restraint. Hence, the reason for the deliverance of Mr. Justice BEAN and it is well grounded in precedent.
Stewart Co. v. Newby, 266 Fed. 287, was a case where the trial court ruled out the testimony relating to insurance and directed the jury to disregard it. On appeal, however, the judgment was reversed, the court treating the situation as an exception to the general rule that the direction to the jury to disregard the testimony is sufficient. It was there said:
"* * This court must take cognizance of the general recognition among the members of the bar, as well as by the courts, of the harmful effect upon the minds of jurors of such testimony as was here sought to be introduced. The only purpose for which such evidence is presented is to prejudice the jury, and the poison is of such character that, once being injected into the mind, it is difficult of eradication."
Other cases of the same kind which were reversed on appeal although the trial court had directed the jury to disregard such testimony are Manigold v. Black River Traction Co., 81 A.D. 381 (80 N.Y. Supp. 861), and Atkins v. Bartlett, 101 W. Va. 263 (132 S.E. 885), a case substantially parallel to this, where the plaintiff himself was the witness who injected that kind of statement. Also, Wilkins v. Schwartz, 101 W. Va. 337 (132 S.E. 887), Westby v. Washington Brick, Lime Mfg. Co.,40 Wash. 289 *Page 618 (82 P. 271, and Iverson v. McDonald, 36 Wash. 73 (78 P. 202).
Strictly, it is not a question of penalizing or punishing someone. It is one of protecting the rights of defendant from the effect of the mischievous utterance. It is not by the mark to consider that possibly the plaintiff's counsel adroitly stirred his client up to that situation or whether the witness was innocent and unsophisticated. The objectionable matter was certainly brought to the attention of the jury very effectively and was harmful irrespective of the ignorance or shrewdness of those responsible for it. The remedy is plainly laid down inRosumny v. Marks and the trial court was wrong in not applying it. The latest decisions in this state are to the effect that the result of getting the fact of such insurance before the jury is a mistrial.
In Tuohy v. Columbia Steel Co., 61 Or. 527 (122 P. 36), the insurance appeared only as an incident in cross-examination of a witness tending to affect his interest in the result of the trial. The question arose in connection with the examination of jurors on the voir dire in Putnam v. Pacific Monthly Co.,68 Or. 36 (130 P. 986, Ann. Cas. 1915C, 256, 45 L.R.A. (N.S.) 338). Its admission in that case was condemned as an abuse of discretion. Jones v. Sinsheimer, 107 Or. 491 (214 P. 375), discloses that insurance of the defendant was volunteered by disinterested witnesses for the plaintiff in response to cross-examination by the defendant's own counsel. As in all other cases on the question, the admission of such testimony was condemned; but, on the ground that the plaintiff should not be made to suffer for the blunder of opposing counsel, it was determined that striking out the testimony and directing the jury *Page 619 to disregard it was sufficient to cure what was really invited error. In the instant case the plaintiff himself as a witness evidently volunteered the statement as a makeweight to advance his case with the jury. This constitutes a palpable and flagrant violation of the rule.
The most recent decision on the subject is Ross v.Willamette Valley Transfer Co., 119 Or. 395 (248 P. 1088), where some of the precedents are cited and the ruling made that the judgment should be reversed and the cause remanded for a new trial.
For these reasons I dissent from Judge BROWN'S opinion.