HATFIELD ET AL v. LEVY BROS ET AL

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District Court of Appeal, First District, Division 2, California.

HATFIELD ET AL. v. LEVY BROS. ET AL.

Civ. 11501.

Decided: April 17, 1941

Edmund Scott, of Redwood City, and Myrick & Deering and Scott, of San Francisco, for appellants. Francis N. Foley, of San Mateo, for respondents.

Plaintiffs, who are husband and wife, sought damages resulting from personal injuries sustained by plaintiff Pearl Hatfield. Judgment upon the verdict in the sum of $10,000 was entered in favor of plaintiffs and from said judgment, defendants appeal.

Mrs. Hatfield sustained her injuries when she slipped and fell upon a polished waxed floor in the store of the defendants. It was alleged in the complaint that defendants negligently and carelessly caused and permitted said floor to become slippery and unsafe.

Defendants rely upon the rules laid down in Mautino v. Sutter Hospital Ass'n, 211 Cal. 556, 296 P. 76, and contend that the evidence in the present case was insufficient to sustain the verdict against defendants. There was some conflict in certain phases of the evidence and there was some evidence, adduced by plaintiffs, which tended to distinguish this case from the Mautino case. Our review of the record leads us to the conclusion that, disregarding conflicts and considering only the evidence most favorable to plaintiffs, there was sufficient evidence to sustain the verdict but the case was an exceedingly close one and we are of the opinion that a reversal of the judgment is required upon other grounds.

Defendants contend that it was prejudicial error to admit testimony showing that the defendant company stopped waxing the floor after the accident happened. Such testimony was admitted over defendants' objection and we are of the opinion that the trial court erred in admitting such testimony. It is well settled that evidence of precautions taken or repairs made subsequent to the happening of an accident is inadmissible to show negligence at the time of the accident. Anstead v. Pacific Gas & Electric Co., 203 Cal. 634, 265 P. 487; Helling v. Schindler, 145 Cal. 303, 78 P. 710; Limberg v. Glenwood Lumber Co., 127 Cal. 598, 60 P. 176, 49 L.R.A. 33; Morris v. Sierra, etc., Power Co., 57 Cal.App. 281, 207 P. 262; 10 Cal.Juris. 829, sec. 115.

Defendants further contend that the trial court committed prejudicial error in the giving of the following instruction: “If you believe from the evidence that plaintiff, Pearl Hatfield, at the time and place in question, was in the building of defendants at its invitation, express or implied, and that she sustained injuries without fault upon her part, and that such injuries were proximately caused by the dangerous condition of said floor at the place in question, and that such dangerous condition of said floor was known to defendant or in the exercise of reasonable care should have been known to defendants and that said danger, if any, was not obvious, and was not known to plaintiff, then you are instructed that plaintiff is entitled to recover damages from defendants therefor.”

The last–mentioned contention is based upon the claim that, in giving said instruction, the trial court assumed as an undisputed fact that the floor was in a dangerous condition. We are of the view that the giving of said instruction constituted error. One of the main questions in dispute was whether the floor was in fact in a dangerous condition and it was error for the trial court to instruct the jury as above set forth.

Defendants further contend that plaintiffs' counsel was guilty of prejudicial misconduct in deliberately eliciting testimony indicating that the defendant company was insured. The testimony in question was elicited from the witness Caro Meyers, who was one of defendants' witnesses and an employee of the defendant company. Said witness had assisted Mrs. Hatfield and had had a conversation with her immediately after the accident occurred. Said witness was not a party to the action. She had apparently stated to Mrs. Hatfield in the course of said conversation that the company was insured. It appears without contradiction from the affidavits used on the motion for new trial that counsel for both sides had interviewed said witness on one or more occasions before the trial of the cause. The affidavit of plaintiffs' counsel shows that the witness had informed him before the trial that defendants' counsel had requested her to omit the reference to insurance at such time as she might give her testimony concerning the conversation and that plaintiffs' counsel had then advised said witness to disregard said request of defendants' counsel. Upon the trial, said witness testified to the conversation when called as a witness by defendants and she was then cross–examined by plaintiffs' counsel. Under repeated questioning upon cross–examination, plaintiffs' counsel finally elicited from the witness the fact that she had said to Mrs. Hatfield that the company was insured. At a session held in chambers and out of the presence of the jury, the conduct of plaintiffs' counsel was assigned as prejudicial misconduct and the trial court was asked to declare a mistrial. This motion was denied.

It is entirely apparent from the record that counsel for plaintiffs had deliberately sought to elicit this testimony concerning insurance. It is further apparent that such testimony could not have been elicited for any legitimate purpose. We are well aware of the fact that there are circumstances under which it has been held that certain references to insurance may serve some legitimate purpose in the trial of personal injury actions but the damaging effect of any reference to insurance has long been recognized. The authorities are uniform in holding that where such references to insurance can serve no legitimate purpose, it is prejudicial misconduct in a close case to deliberately elicit or make references to insurance solely for the illegitimate purpose of obtaining the damaging effect of such references upon the minds of the jurors. Squires v. Riffe, 211 Cal. 370, 295 P. 517; Citti v. Bava, 204 Cal. 136, 266 P. 954; Nichols v. Smith, 136 Cal.App. 272, 28 P.2d 693; Anderson v. Mothershead, 19 Cal.App.2d 97, 64 P.2d 995; Sischo v. City of Los Banos, 26 Cal.App.2d 642, 80 P.2d 116, 1020; Rising v. Veatch, 117 Cal.App. 404, 3 P.2d 1023; Peacock v. Levy, 114 Cal.App. 246, 299 P. 790; Mangino v. Bonslett, 109 Cal.App. 205, 292 P. 1006.

An attempt is made to justify the eliciting of such reference to insurance upon the ground that part of the conversation had been introduced in evidence by defendants and that plaintiffs were therefore entitled to introduce the entire conversation. The rule embraced in section 1854 of the Code of Civil Procedure and relied upon by plaintiffs is limited by its own terms to those portions of the conversation which are “on the same subject” (Zibbell v. Southern Pacific Company, 160 Cal. 237, 250, 116 P. 513, 519) and the rule is not to be extended further than to cover those portions of the conversation which tend to “explain or qualify the part first given in evidence.” Granite Gold Mining Co. v. Maginness, 118 Cal. 131, 135, 50 P. 269, 271. The portion of the conversation relating to insurance, which was deliberately elicited, was not in any fair sense “on the same subject” nor did it in any way tend to explain or qualify the part of the conversation first given in evidence. We therefore conclude that the deliberate eliciting of said reference to insurance cannot be justified upon the ground stated.

Plaintiffs further call attention to the fact that the trial court, of its own motion, instructed the jurors in the general charge that no insurance company was a party to the action and that the jurors should disregard any reference to insurance that may have been made during the course of the trial. While this instruction may be properly given and may serve a useful purpose under certain circumstances, we are of the view it cannot serve to offset prejudicial misconduct in deliberately bringing before the jury, without legitimate purpose, testimony to the effect that a defendant actually carries insurance.

In dealing with defendants' contentions with respect to alleged prejudicial errors in the admission of evidence and in the instructions given, we concluded that there were errors but we did not discuss the question of whether such errors were sufficiently prejudicial to require a reversal. As above stated, the case was a close one and of that class of cases in which any error or misconduct would be likely to be prejudicial. Our review of the record leads us to the conclusion that said errors and misconduct taken together resulted in such prejudice to defendants as to deprive said defendants of a fair and impartial trial and that a reversal is required.

The judgment is reversed.

SPENCE, Justice.

We concur: NOURSE, P. J.; STURTEVANT, J.