Weiner v. Mizuta

CRAIL, J.

This is an appeal from a judgment in favor of the plaintiffs for damages received in an automobile accident. Appellants base their claim for reversal almost entirely upon the contention that the trial court erred in denying defendants’ motion for a mistrial based upon the improper introduction of “the insurance question”.

The following is a short

résumé

of what occurred at the trial in this respect. The plaintiff husband testified upon direct examination: “I asked Mr. Mizuta how it was that he didn’t see my car parked there, and his answer to me was, ‘I am sorry, I seen you too late’.” The parties then pulled their cars over to the east side of the street and immediately continued with the conversation. “A. . . .1 told him that my wife was hurt. Q. What did he say? A. His reply was, ‘You go get any doctor,’ or ‘your doctor, that we are insured, and I hope the lady will be better’. ... Q. Do you recall any further conversation that you had at that time on the east side of the street immediately after you arrived there with Mr. Mizuta. ... A. He said to me, ‘I am sorry.

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I seen you too late.’ Mr. Betts: We object to that as already asked and answered! Q. He said that in addition to what you have already testified to? A. Yes, sir. Q. (By the Court) : You mean while you were on the east side of Wall Street, while you were on the sidewalk? A. Yes,.sir.”

Appellants say in their closing brief, “We . . . admit that as the law now exists it establishes a right upon the part of a plaintiff to repeat to the jury conversations which may be taken to be admissions of liability, and that there can be no error predicated upon the fact that such conversations include a reference to. insurancé. May we, therefore, in fairness to ourselves and to this court, admit that if the words referred to by appellants were joined together, they could be interpreted to be an admission against interest and there could be no error predicated upon them.” In making this contention about'the improper intrusion of the insurance question the appellants seem to have overlooked the fact that the second time the words, “I am sorry, I seen you too late,” were said by Mr. Mizuta, they were said immediately at the time he said, “You go get any doctor,” or “your doctor, that we are insured, and I hope the lady will be better”. The words “we are insured” were not only, a part of an admission against interest but an inextricable part thereof. Furthermore, at the time the above incidents occurred, the following transpired: “Mr. Betts: I assign the statement as error and ask the court to grant a mistrial,