JOHNSON v. HANSEN et al, 237 Or. 1

GOODWIN, J. This is an action for damages for injuries sustained in an automobile collision. The jury found for the plaintiff and the defendants appeal from the judgment. The accident occurred on a two-lane highway. Plaintiff was proceeding south in her own lane of travel. Defendant Robert Hansen, following a school bus, was proceeding north in his lane of travel. The school bus was equipped with flashing stop signal lights, front and rear. These lights flashed on and continued operating for approximately 400 feet before the bus stopped to take on children.

Defendant Hansen, in seeking to avoid collision with the rear of the bus, applied his brakes. This act caused the defendants’ truck to spin or skid into the plaintiff’s lane of traffic. Plaintiff’s automobile struck defendants’ truck. The first assignment of error asserts that the trial court abused its discretion in refusing to grant a mistrial during the examination of a prospective juror.

Plaintiff’s counsel questioned the first juror on voir dire as follows: “Q Now, do you believe that you have a financial interest in this lawsuit in any way, shape or form, by reason of any effect it might have upon you in your own private cost of living? (No response.) “Q In other words, you don’t think, for example, that if you gave this woman a large sum of money, you don’t feel that directly or indirectly that stun of money might make your cost of living higher in any way whatever?” Defendants immediately moved for a mistrial on the ground that plaintiff’s counsel had intentionally injected the matter of insurance.

The motion was denied, apparently because the trial judge thought the question had been asked innocently. In the ordinary case, the presence or absence of insurance is not only irrelevant, but the unnecessary injection of the subject into the trial is prejudicial. See Cameron v. Columbia Bldrs., Inc. et al, 212 Or 388, 393, 320 P2d 251 (1958).

Since the profession knows that questions about insurance normally have no place in the voir dire examination of jurors, or in the questioning of witnesses, the problem presented by the mention of insurance comes before this court only in those cases where counsel thought he had some more or less colorable excuse for conduct that otherwise would have been improper and very likely would have furnished ground for a mistrial. The clear cases are not appealed.

It is in the questionable cases, then, that this court has repeated its longstanding rule that the decision of the trial court to grant or deny a mistrial will not be disturbed unless there was a manifest abuse of discretion. The rule is the same whether the irrelevancy concerns insurance or other extraneous matter likely to prejudice the offended party. See Martin v. Dretsch, 234 Or 138, 380 P2d 788 (1963). In the ease at bar there was no preliminary showing of any fact that might have made relevant an inquiry concerning bias arising out of the relationship of verdicts and insurance premiums.

Where a line of questioning obviously is going to open up prejudicial speculation, e.g., of a racial, religious, political or other emotionally charged nature, the exploration of which will manifestly incite similar speculation upon the part of listening jurors, counsel must he prepared to show the need which might make such an inquiry relevant, or run the risk of an immediate mistrial. Insurance matters should he handled with the same safeguards.

In the case before us counsel did not advise the court of the existence of recent institutional advertising, or of other current propaganda calculated to produce bias upon the part of jurors in the local court. Thus there was no occasion to open up the matter of insurance, whether innocently or with scienter. We hold that the inquiry was improper. Its impropriety, furthermore, was not a matter to he determined in the exercise of judicial discretion.

Impropriety is established as a matter of law when the exploration of potentially prejudicial matter before the jury is undertaken without any legitimate reason being offered therefor. Where good cause does exist, the safer practice would he to resolve the problem out of the presence of the jury rather than to indulge in experiments to test the temper of the trial court. The next question is whether the motion for a mistrial should have been granted. Many times in the trial of a lawsuit counsel will say things which ought not to have been said.

It does not necessarily follow that every such blunder must result in a mistrial. It is here that the proper play of judicial discretion is brought to hear upon the question. The court must choose in each instance a remedy that is appropriate. The trial court must see that both parties have a fair trial. If, in the case at bar, the trial court’s ruling was arbitrary, i.e., denied the defendant a fair trial, then it should be reversed. If not, it should stand. We believe that the increment of prejudice in this ease was very slight. The improper questions did not obviously carry an insurance label.

Jurors sophisticated enough to read insurance into the case were no doubt already aware of its existence in the vast majority of automobile cases. The trial judge was in a good position to sense the subjective elements that made up the atmosphere of that particular jury trial. The burden is upon the complaining party to show some real probability that his right to a fair trial was impaired. No such showing has been made in this ease. We are satisfied that the trial court’s ruling was within the permissible area.

Judicial discretion in such a situation properly balances whatever prejudice might have occurred against all the other relevant factors present in a particular case. The judge must weigh against an inference that prejudice actually resulted any countering influences that arise from his own special knowledge of the conditions in his courtroom. The record discloses no reason to believe that the judge failed to exercise his discretion judiciously in this case. A mistrial could have been granted, but its denial was not an abuse of discretion.

A second ground for a mistrial is based upon an objection during plaintiff’s closing argument to the jury. The challenged statement was as follows: It is improper to address a juror by name. See Henderson v. U. P. R. R. Co., 189 Or 145, 219 P2d 170 (1950). But again, this is a matter of professional ethics. See Ride 18, Oregon State Bar Rules of Professional Conduct. The prejudicial effect, if any, of improper argument is in the domain of the trial court’s discretion. A ruling on a motion for a mistrial will not be disturbed unless there is a palpable abuse of discretion.

The primary office of the mistrial is to prevent a miscarriage of justice, not to punish pettifogging. We find no abuse of discretion in this assignment. “You all know, as a practical matter, that we cannot avoid the consequences of our acts. And if our acts should be neglectful, it doesn’t change it by saying we are sorry. How often are we sorry? How many times have you, as mothers— Mr.

Rivenes perhaps is a father, and I think we’ve got one who may be too young — but how many times in raising a family — ” It is finally urged that a mistrial should have been granted on the ground that plaintiff unduly exhibited her distress by crying and clutching her father or some other person in the presence of the jury. As pointed out in Hays v. Herman, 213 Or 140, 322 P2d 119, 69 ALR2d 947 (1958), whether a party’s emotional outbursts in the courtroom afford the basis for a mistrial will depend upon the facts of the particular case.

In that case it was noted that the common pattern running through most of the cases “is to sustain the action of the trial court, because of its superior opportunity to determine whether the weeping, or other display, was prejudicial in a given case.” 213 Or at 145. Cf. Ferguson v. Moore, 98 Tenn 342, 351, 39 SW 341 (1896), considering tears shed by counsel. In the case at bar, the plaintiff had become mentally incompetent as the result of her injuries, and her conduct in the courtroom was a symptom of her difficulty. There is no suggestion that any improper attempt was made to exploit her distress.

We find nothing in the record to cause us to substitute our judgment for that of the trial court concerning the effect of plaintiff’s conduct upon the outcome of the case at bar. If, in the judgment of the trial court, the cumulative effect of counsel’s conduct or his client’s conduct in the particulars noted was likely to be prejudicial to the defendants, it would have been proper at any point for the trial court to terminate the proceedings. It likewise would have been proper for the trial court to grant a new trial if, in its opinion, prejudice had been injected.

The court also could have taken whatever disciplinary action it considered reasonable and necessary to prevent further misconduct by counsel, if, indeed, there was misconduct. However, even though it would have been perfectly proper to grant a mistrial, it does not follow that refusing to do so was an abuse of discretion. Judicial discretion, in its very nature, admits of considerable breadth in its application.

There is nothing about the verdict ($138,000) considered in light of the injuries (permanent disability, brain damage, and disfigurement of a 43-year-old woman) to suggest that the jury was affected by prejudice. Next it is argued that plaintiff violated OES 485.020 (making it the duty of persons operating vehicles on the highway to stop when meeting or overtaking a school bus which has stopped to receive or discharge school children), and that the violation of the statute constituted contributory negligence as a matter of law.

We believe the matter of the plaintiff’s negligence, if any, and its causal connection with the collision were properly left to the jury. Burke v. Olson, 206 Or 149, 291 P2d 759 (1955). Defendants urge us to overrule Burke v. Olson, supra. Burke v. Olson correctly interpreted OES 485.020. There is no reason to overrule it. Finally, defendants assert that they were entitled to an involuntary nonsuit on the ground that through one of plaintiff’s own witnesses it was established that she was negligent as a matter of law. There is no merit in this contention. The question was for the jury. Affirmed.