Rising v. Veatch

DOOLING, J.,

pro

tem.

In this action for malpractice respondents recovered judgment against appellant, a dentist.

[406]

The case was tried before a jury. In the course of the examination of respondent, Ethel Rising, she was asked by her counsel to relate a certain conversation with appellant. Over repeated objections of appellant’s counsel the following testimony was given: “In regard to reimbursing us for the doctor bills—■ . . . Reimburse us for the expenses of the doctors; that it was out of his hands, and would have to be handled through his insurance.”

Counsel for appellant immediately assigned the asking of the question and the answer as prejudicial misconduct that could not be cured by admonition and asked the court to declare a mistrial. The court refused to declare a mistrial, but struck out the offending answer and admonished the jury to disregard it. The whole proceeding so closely paralleled the similar proceeding in

Squires

v.

Riffe,

211 Cal. 370 [295 Pac. 517], that the one might have been modeled upon the other. The courts have so frequently, and in the strongest terms, condemned the eliciting of evidence concerning insurance against liability carried by defendants that no excuse can be conceived for counsel bringing it out, and the practice is so recurrent as to call for the sternest measures by both trial and appellate courts whenever it occurs.

Counsel for respondents cite

Lahti

v.

McMenamin,

204 Cal. 415 [268 Pac. 644], and claim that the purpose of the question was in good faith to elicit an admission of liability. But the question which elicited the answer complained of was put to counsel’s own client and counsel either knew or should have known the answer to be expected. The answer as given contained no admission of liability and was admissible on no conceivable ground. That there was in fact no admission seems clear from what immediately followed when the court turned to the witness and asked: “That is the complete answer is it?” to which the witness replied: “As near as I can remember it.”