Opinion
Hearing Granted by Supreme Court April 28, 1927.
Appeal from Superior Court, Santa Clara County; F. B. Brown, Judge.
Action by F. Citti against Pietro Bava. Judgment for plaintiff, and defendant appeals. Reversed. COUNSEL
Wm. M. Abbott, K. W. Cannon, and J. E. Reardon, all of San Francisco, and H. A. Gabriel, of San Jose, for appellant.
R. V. Bressani and D. T. Jenkins, both of San Jose, for respondent.
OPINION
PRESTON, Presiding Justice pro tem.
This is an appeal by the defendant, Pietro Bava, from a judgment entered against him upon a verdict of a jury in the sum of $6,000.
This action followed an automobile collision on the public highway leading from San Jose to San Francisco, and at a point about 10 miles north of the city of San Jose.
The defendant, Pietro Bava, owned and operated a six-passenger Haynes automobile. About 5:50 p. m. on September 26, 1922, he left San Jose, driving his automobile, and had with him in the car as his guests the plaintiff, F. Citti, R. Dei, and two other men. Both the plaintiff and Dei, also one Bonnetto, were in the rear seat of the automobile, with the plaintiff in the middle. They were all going from San Jose to San Francisco to attend a wrestling match to be held that night at Dreamland Rink at 8:30 p. m., between Strangler Lewis and one Gardini. When they reached the intersection of the road upon which they were traveling and a crossroad known as Fremont avenue, the Haynes car collided with a Ford car going easterly on Fremont avenue, driven by Louis Aftergut. All of the occupants of the Haynes car were more or less injured. The plaintiff suffered a fracture of the skull, which resulted in a partial paralysis, and cuts and bruises. Dei also suffered a ruptured intestine and received cuts and bruises. Both the plaintiff and Dei brought an action for damages against the defendant, Bava, and both cases were tried together and resulted in a verdict in favor of Dei for $4,000, and the plaintiff, Citti, for $6,000 as stated.
R. Dei testified in part as follows:
"Q. Did you tell Mr. Bava anything when you saw how fast he was going? A. I told him five or six or seven, or probably eight times, ‘Bava, stop, you will kill us all.’ Q. What did Bava say? A. He answered that ‘I will bring you in an hour to San Francisco.’ Q. At the time that you were approaching this crossroad, how many miles an hour was the automobile in which you were riding traveling? A. He was going from 55 to 60 miles. Q. Did anybody else say anything to him about how fast he was driving? A. Yes; Citti told him two or three times to stop, that he was going too fast and he wanted to get out, and I also repeated I wanted to get off, he would kill us all. Q. And what did Bava reply? A. This was the second time, he answered back that ‘in three-quarters of an hour I will bring you to San Francisco,’ and then he replied no more. Q. Was there any time that Mr. Bava was driving his car 20 or 25 miles an hour, from the time he left 594 W. San Carlos street up to the time of this accident? A. From the starting point of my residence where he picked me up, around to the hospital he went around 35 to 37 miles; from there out to Cupertino he went around 40, until he got to the corner and made the turn and then he went faster. Q. How far from the scene of the accident was the last time that you saw it (referring to speedometer)? A. I saw the speedometer the last time after he made the turn at Cupertino where the oil station was. He went around the corner 20 miles an hour or thereabouts, and immediately after he made the turn I saw the speedometer at 50 miles an hour. Q. And how far was that from the scene of the accident, half a mile, or a mile, or how far? A. It was about 3 miles. *** Q. What time did this accident happen? A. It must have been around 5 or 6 or 7 minutes after 6 o’clock, along that time. Q. What is the distance from San Jose out to the place of this accident? A. I don’t know exactly the distance, *** maybe 9 or 8 miles from North Market street to the place of the accident."
The plaintiff, F. Citti, testified in part as follows:
"Q. After you had left Cupertino how fast were you traveling? A. He was going from 40 to 45 and 60 miles. Q. Did anybody, did you or anybody else say anything to Bava about the rate of speed that you were traveling? A. I told Bava myself three or four times to slow down, go slow, and this cook, called Dei, told him five or six times to go slow and slow. Q. And where, at what places, did you tell him this? A. Been telling him to go slow after he left the O’Connor Sanitarium when he started to go 35 and 45. Q. Did Bava make any reply? A. Bava didn’t reply until after he made the turn at Cupertino, telling Dei or cook that ‘in three-quarters of an hour to an hour I will take you to San Francisco."’
The witness Forestiae, who was one of the parties in the Haynes automobile, riding in the front seat, on the right-hand side of Mr. Bava, the driver, testified in part as follows:
"Q. Now, from the time that Mr. Citti got in the car up to the time of this accident, that Mr. Dei got in the car, up to the time of this accident, did you ever hear either Mr. Citti or Mr. Dei say to Bava anything on that trip about the speed that Mr. Bava was driving the car? A. No; never heard them say anything. Q. Mr. Citti or Mr. Dei did they ever ask to get out of the car? A. No. Q. Did they ever ask Mr. Bava to stop? A. No. Q. Did they ever ask him to slow down? A. No. Q. Did Mr. Citti or Mr. Dei make any complaint to Mr. Bava about the way he was driving his car? A. No; they never complained. Q. Did you ever hear Citti or Dei say to Mr. Bava to slow down or he would kill them? A. No. Q. Did Citti or Dei make any such a statement to Mr. Bava? A. No, sir. Q. And what rate of speed was he going from the time that he made the turn in the road at Cupertino up before this accident? A. Was driving at the rate of 25, between 25 and 30 miles an hour. Q. Was there anything in the way that Bava drove his car to cause you alarm? A. No. Q. Now, he drove it carefully? A. Sure. Q. And at a slow rate of speed? A. Sure. Q. You were not alarmed in the least at the way Mr. Bava was driving his car, and he appeared to be driving it carefully and in a lawful rate of speed to the time of the accident? A. If there had been any danger I would have got out of the car. Q. And you didn’t get out because there was not any? A. No, sir; I did not get out of the car. Q. There was no reason for anybody getting out? A. No. Q. No reason for anybody to complain about the way Bava was driving the car? A. No, sir. Q. Who reached the intersection first, the Haynes car or the Ford car? A. Mr. Bava’s machine arrived at the crossing first."
Mike Bonnetto, another occupant of the automobile, testified in part as follows:
"Q. From the time that you got in the Haynes car up to the time and place of this accident, did you hear Mr. Citti or Mr. Dei say anything to Mr. Bava about the rate of speed that he was driving the Haynes car? A. No, sir. Q. Did you ever hear Dei or Citti say to Pete Bava to go slow? A. No. Q. Did you ever hear Citti or Dei tell Bava to stop and let them out? A. No. Q. Did you ever hear Dei or Citti say to Pete Bava that he would kill them? A. No. Q. Did you ever see Citti or Dei stoop and lean over between Bava and Guy Forestiae and look at the speedometer? A. No. Q. At the time of this accident and before the accident, did you have good hearing? A. Yes, sir. Q. And did you have good eyesight? A. Yes. Q. How fast did you drive from Dei’s house to the Sanitarium? A. 20 miles. Q. And how fast from Cupertino to the place of the accident? A. About 25. Q. Which car reached the intersection first, the Ford or the Haynes car? A. The Haynes. Q. Do you know whether the Haynes ran into the Ford or the Ford ran into the Haynes? A. The Ford ran into the Haynes machine."
The defendant, Bava, also testified in part as follows:
"Q. And what was your speed as you went from O’Connor Sanitarium out to Cupertino and before you reached this Fremont avenue before this accident? A. About 25, 30 miles. Q. Well, as you were going across the intersection, how fast were you going? A. About 15 miles. Q. And did you observe the rate of speed that the Ford car was going? A. Yes; because I went outside of the road. I saw the Ford coming fast, and went outside to pass, but he lost his control, come hit me in the middle of my car. Q. Mr. Bava, from the time that Mr. Dei and Mr. Citti got in your Haynes car up to the time and place of this accident, did you even hear Mr. Dei say to you to go slower? A. No. Q. Did you hear him say stop or you would kill us? A. No. Q. Did you ever hear Dei or Citti speak in a loud voice asking you to slow down? A. No; never did. Q. Did Dei ever say to you, ‘Bava, you will kill us all if you do go so fast’? A. No. Q. Did anybody in your Haynes car from the time you took Citti into the car up to the time and place of this accident, ever say anything to you about the speed of your car? A. No. Q. Did Citti ever say to you to go slower at any time? A. No. Q. Did Citti or Dei ever ask you or demand of you to let them off or let them out? A. No."
Mr. Louis Aftergut, the driver of the Ford car, testified for the plaintiff, and his testimony was in part as follows:
"A. I was traveling toward San Jose on the Los Altos highway. *** Q. Is it called the Fremont road, if you remember? A. I don’t know the name of it. Los Altos road I know it by. Q. In what kind of a conveyance were you traveling? A. Ford. Q. Ford automobile, and you were proceeding from Los Altos toward San Jose? A. Toward Santa Clara. Q. To Santa Clara, in an easterly direction, that is? A. Well, whatever way. I don’t know what direction it is. Q. At that time did you have any accident? A. Yes. Q. What was the accident? A. Another machine ran into me. Q. Whose machine ran into you? A. I can’t pronounce that, Bava. Q. Pietro Bava’s machine, and about what time was it that his machine ran into you? A. Oh, about 6 o’clock. Q. Will you please tell this jury just how it happened? A. Well, I was traveling toward Santa Clara, and Bava was coming from Cupertino toward Sunnyvale and met on the crossing there. Q. How fast was Bava going? A. In my estimation he was doing between 45 and 50. Q. And how fast were you traveling at the time? A. About 20. Q. And what happened to his machine, did it hit yours, or did his run into yours? A. He hit me. Q. What part of the machine did he hit? A. Somewhere near the middle on the right side. Q. What did he do to your machine? A. Wrecked it in general. Q. Now, Mr. Aftergut, when you saw Bava’s machine approaching, did you make any attempt to avoid the accident? A. I did. Q. What attempt did you make? A. Turned with him. Q. By that you mean you turned in the direction of Sunnyvale? A. Yes. Q. What did he do? A. I don’t know what he done. Q. After his machine hit yours what happened to it, his machine? A. I didn’t see it until I got out of mine; then it was stopped. Q. And where was it stopped? A. Down the highway toward Sunnyvale. Q. How far down? A. Oh, about 150 feet or so. Q. And what was the condition of his automobile? A. Oh, was not much left of it from what I could see, *** the car was setting on the highway straight up."
Other testimony was offered and received in evidence by both the defendant and plaintiff, but the foregoing is sufficient to show the conflicting character of the testimony.
The appellant contends that the court erred in admitting evidence offered on behalf of plaintiff concerning a settlement made with Louis Aftergut, the owner and driver of the Ford automobile involved in the collision. As has already been stated, Mr. Aftergut was called as a witness for the plaintiff, and, in the course of his direct examination by Mr. Jenkins, one of the attorneys for plaintiff, the following proceedings were had:
"Q. Did Mr. Bava ever make any claim to you that it was your fault? A. No.
"By Mr. Reardon (One of the Attorneys for Defendant): Object to that as incompetent, irrelevant, immaterial.
"By the Court: He has answered it.
"Q. Did Mr. Bava ever settle with you for your damages?
"By Mr. Reardon: We object to that as incompetent, irrelevant, immaterial.
"By Mr. Gabriel (also Associate Counsel for Defendant): Unless it is shown Mr. Bava himself did it, if you can show that.
"Q. Did anybody settle with you for the damages; that can be answered ‘Yes’ or ‘No,’ and I will find out who.
"By Mr. Reardon: Object to that as incompetent, irrelevant, and immaterial.
"By Mr. Gabriel: We are not bound by anybody’s actions and unless they can show that Mr. Bava
"By the Court: I presume that would be so, Mr. Jenkins.
"By Mr. Jenkins: Well, first of all, if he answers ‘No,’ that ends it; if he answers ‘Yes,’ I have to connect it up with Mr. Bava if I can. I am entitled to find out.
"By Mr. Gabriel: If you will promise to connect Mr. Bava.
"By Mr. Jenkins: I will promise to do my best.
"By Mr. Gabriel: That is different.
"By the Court: We will overrule the objection. Answer that question whether or not he has been settled with by anybody. A. What is the question?
"Q. Have you been settled with by anybody for your damages? A. I have.
"Q. And who settled with you?
"By Mr. Reardon: Same objection, your honor.
"By Mr. Gabriel: We object to that unless it was Mr. Bava.
"By Mr. Jenkins: Unless it will be subject to be stricken out unless we connect it to Bava.
"By Mr. Gabriel: I don’t think counsel ought to put something in.
"By Mr. Jenkins: I proposed to put him on the stand and ask if he is not representing Bava.
"By Mr. Gabriel: I object, incompetent, irrelevant, and immaterial, any transactions this man may have had with anybody else is no concern of this action of Citti and Dei against Bava.
"By Mr. Jenkins: I propose to show Bava’s agent or a man pretended to act for him settled.
"By Mr. Gabriel: Well, if you find that out, if you can connect that up you have a right to. I don’t think it fair to give to the jury unless you can.
"By the Court: You may ask the question. A. Olds & Stoller Interexchange.
"By Mr. Gabriel: What is that? A. Olds & Stoller Interexchange.
"By Mr. Jenkins: Olds & Stoller Interexchange? A. Something like that.
"By Mr. Reardon: Same objection.
"Q. Was it this man sitting here?
"By Mr. Reardon: Same objection, your honor. I ask to have all of this line of questioning on behalf of Mr. Jenkins assigned as misconduct and used principally, solely, and only for the purpose of trying to prejudice this jury against Pietro Bava, the defendant in this case, all these questions.
"By the Court: Well
"Q. Was this settlement of Olds & Stoller by reason of any policy you held with Olds & Stoller?
"By Mr. Reardon: Same objection, assign it as misconduct.
"By the Court: Objection overruled. A. What is the question?
"Q. Was this settlement made with Olds & Stoller by reason of any policy you had with Olds & Stoller?
"By Mr. Reardon: Object and ask to have it assigned as misconduct.
"By the Court: Objection overruled; assignment denied.
"Q. Did you have a policy of Olds & Stoller on-a policy of insurance with which they settled with you? A. No.
"Q. It was not your policy? A. No.
"Q. Who was the man that settled with you?
"Mr. Reardon: Same objection.
"Q. Do you know?
"By the Court: I cannot see the objection is good at this time.
"Q. Who was the man that negotiated the settlement with you?
"By Mr. Reardon: Same objection, assign the same as misconduct, used for prejudicial purposes.
"By the Court: Objection overruled; assignment denied.
"Q. Mr. Curtaz here? A. Yes.
"Q. The gentleman who says he is an attorney in Mr. Abbott’s office, one of the attorneys for the defendant here? A. I don’t know whose office.
"By Mr. Reardon: This is leading and suggestive, coming ex parte from Mr. Jenkins himself.
"Q. Have you-did you give Mr. Curtaz the name of any other witnesses who were there?
"By Mr. Reardon: Same objection as incompetent, irrelevant, immaterial, not unless made in the presence of the defendant.
"By the Court: I think the objection should be overruled. A. Why, I don’t think I did, but I don’t remember. If I did, I don’t remember.
"Q. You don’t remember whether you did or not? A. I don’t think I did, but I am not positive."
The plaintiff then produced as a witness Benjamin F. Curtaz, and in the course of his examination the following proceedings were had:
"Q. Are you the Mr. Curtaz who made the settlement with Mr. Aftergut? A. I am.
"By Mr. Reardon: Just a moment. I object to that as incompetent, irrelevant, immaterial, and not an issue in this case, if your honor please.
"By the Court: Objection overruled.
"By Mr. Reardon: I would like to have the objection go before the answer. Mr. Curtaz answered it a little quick.
"By the Court: Very well.
"Q. Who were you acting for at that time?
"By Mr. Reardon: Same objection.
"Q. You were in court at the last trial when Mr. Aftergut testified that it was Bava that settled with him, weren’t you? A. I was. Q. And you didn’t contradict that statement at that time?
"By Mr. Reardon: I object to that as argumentative and incompetent and immaterial as to anything that transpired at the last trial, if your honor please, in reference to Mr. Aftergut or any dealings that Mr. Aftergut had.
"By the Court: Well, the objection is not good. A. That was not his testimony.
"Q. What was his testimony, you have it, *** please tell me what his testimony was, what was it?
"By Mr. Reardon: I submit the testimony is the best evidence, if your honor please. I think this is all argumentative, incompetent, irrelevant, and immaterial. This is an action brought by Citti and Dei against Pietro Bava, and any issues or dealings with Mr. Aftergut is not an issue in this case. Mr. Aftergut is not a defendant or plaintiff; they don’t sue him in this case; he is not made a party to this action.
"By the Court: Objection overruled.
"Q. What did he testify to then? A. You have the answer there. Q. Do you know what he testified to?
"Mr. Reardon: Object as not the best evidence. A. I do. *** Read the record I think is the best way to do.
"Mr. Jenkins (reading): ‘Q. Have you been reimbursed by the defendant for your damages? A. I have.’ Reading from page 7, you heard this witness testify to this: ‘Have you been reimbursed by the defendant for your damages? A. I have.’
"By Mr. Reardon: Objected to as incompetent, irrelevant, immaterial, ask to have it assigned as misconduct.
"By the Court: The objection is overruled.
"By Mr. Reardon: If it can be understood I object to all this line of testimony as being utterly incompetent, irrelevant, immaterial as to any dealings or transactions that Mr. Aftergut may have had. I won’t make the objection so often, and is used for prejudicial purposes and misconduct.
"By the Court: It may be so understood.
"Q. You heard Mr. Aftergut testify in response to my question, ‘Have you been reimbursed by the defendant for his damages?’ Answer: ‘I have.’ A. I heard that and what followed. Q. You heard that, and you did not contradict it, did you? A. No; what follows contradicts that, in my opinion. Q. Did Pietro Bava discuss the terms with you? A. I don’t remember. Q. (Reading): ‘Did this gentleman here, Mr. Curtaz, make the settlement with you? A. He did. Q. Did you make a statement to these gentlemen of the facts of the accident? A. I don’t remember whether I did or not.’ Q. It was you who made the settlement, was it not? A. It was. Q. And at that time didn’t volunteer that Bava had not made any settlement with you? A. You didn’t ask me. Q. You didn’t at that time testify or infer from anybody that the settlement was not made with Bava, did you? A. No; I didn’t. You didn’t put me on the stand. Q. And you let the jury believe at that time that Bava had made the settlement?
"By Mr. Reardon: Same objection, assign it as misconduct.
"By the Court: Same ruling. A. No."
During the cross-examination of this same witness, the following proceedings occurred:
"By Mr. Gabriel: Now, if the court please, we move to strike out all the testimony with reference to any settlement with Aftergut on the ground it has not been connected up with Bava.
"By Mr. Jenkins: I think that is right, your honor.
"By the Court: Let the motion be granted.
"By Mr. Gabriel: Ask the jury be instructed to disregard all testimony in reference to any settlement made with Aftergut in this action.
"By Mr. Reardon: We also want the record to show, if your honor please, that
"By the Court: Let’s get at one thing at a time. Ladies and gentlemen, the court has granted the motion on the part of the defendant to strike out all testimony with reference to a settlement between Mr. Bava and Mr. Aftergut who was a witness here yesterday and who was involved in this collision, and the court instructs you to disregard any testimony as to any such settlement."
During the redirect examination of R. Dei, a witness for plaintiff and also a plaintiff himself, the following proceedings were had:
"Q. What insurance man was it wit her (referring to wife of defendant)?
"By Mr. Reardon: I object to that, incompetent, irrelevant, immaterial, and I assign counsel asking such a question as misconduct.
"By the Court: What do you say about it?
"Mr. Jenkins: I am entitled to know who was with her.
"By Mr. Reardon: I ask that that question be stricken out, incompetent, irrelevant, immaterial, and assign it as misconduct, asked for the purpose of trying to prejudice this jury against this defendant, Pietro Bava.
"By the Court: Objection overruled.
"Q. Who was the man that was with her, if you know? A. That man that is writing there (indicating). Q. Mr. Curtaz? A. I don’t know his name.
"By Mr. Reardon: I ask that this be assigned as misconduct on the part of counsel. It is done for the purpose of prejudicing the jury against the defendant, and that is all he is using it for.
"Q. Did they have a paper for you to sign at that time? A. This man came near the bed there, and Rosie came alongside of the bed also, with a paper to put in my hand, and the nurse informed them not to talk to me long because I couldn’t stand to be talked to. Q. By ‘this man’ who do you mean? A. The man with the glasses on his eyes (indicating Mr. Curtaz).
"By Mr. Reardon: We ask that the answer be stricken out as incompetent, irrelevant, and immaterial; not responsive to the question.
"By the Court: I think we will let it stand."
All this testimony was clearly inadmissible and highly prejudicial to the rights of the defendant.
In the first place, any offer of compromise from the defendant himself to Citti, the plaintiff, which was not accepted by Citti, could not be given in evidence against the defendant (section 895, Code Civ. Proc.) and such an offer of compromise, if made, would not be an admission that anything is due Citti (section 2078, Code Civ. Proc.).
With reference to admissions made in negotiations for a compromise between the litigants themselves, we think the correct rule is this: If a clear admission of a distinct fact is made in the course of negotiations for a settlement, such fact is admissible in evidence against the party making it, even though it forms a part of an offer to compromise, but all other admissions in negotiations for a compromise are regarded as hypothetical admissions, from which it is not proper to draw any inference of liability, and are therefor not to be received in evidence. Smith v. Whittier, 95 Cal. 279, 30 P. 529; Scott v. Sciaroni, 66 Cal.App. 577, 226 P. 827; Dunlap v. Montana Tonopah Mining Co. (C. C.) 192 F. 714; Wigmore on Evidence, vol. 2, § 1061; Truman v. Sutter-Butte Canal Co. (Cal.App.) 244 P. 923.
The plaintiff in this case, however, did not seek to show by this testimony that the defendant had in fact made any admissions of negligence, or had made any statement from which negligence might be inferred, to plaintiff or any one else, but, on the other hand, sought to show that a settlement had been made with Aftergut by Bava, or the insurance company, for any damages that Aftergut claimed.
If it be a fact that the defendant, or the insurance company, settled with Aftergut, and paid him a sum of money, this fact should certainly not prejudice the rights of the defendant in the present action, and could be no evidence that Aftergut’s demand was well founded, or that the defendant was guilty of negligence in the case at bar.
It is very often a wise thing, however unfounded a complaint may be, for a person to pay a sum of money and buy his "peace" and thereby rid himself of the annoyance and trouble incident to litigation. Peace to some people is so desired that they seek it, even at the sacrifice of their legal rights, and in such a case the purchase of peace is not to be taken that the purchaser was at fault, but merely that he is willing to sacrifice his legal rights and pay a sum of money to quiet the complainant and avoid trouble and litigation.
Furthermore, if it be conceded that the defendant here was negligent in colliding with Aftergut, it would not necessarily follow that he was negligent towards the plaintiff in this action. The plaintiff was a guest of the defendant, and Aftergut was traveling upon a public highway, where he had a legal right to be. Therefore the two cases are entirely different as far as legal responsibility goes, and not depending altogether upon the same facts or the same rules of law.
This court and the Supreme Court have many times declared it to be the law in this state that, during the trial of an action for damages, evidence that the defendant has been indemnified against loss by a surety company is not only inadmissible, but its offer on the part of the plaintiff is prejudicial misconduct. Roche v. Llewellyn Iron Works Co., 140 Cal. 563, 74 P. 147; Pierce v. United Gas & Electric Co., 161 Cal. 176, 118 P. 700; Arnold v. California Portland Cement Co., 41 Cal.App. 427, 183 P. 171; De Liere v. Goldberg, Bowen & Co., 30 Cal.App. 612, 159 P. 197; Dameron v. Ansbro, 39 Cal.App. 298, 178 P. 874.
It has also been held that even in the examination of jurors upon their voir dire such questions are highly improper. Dameron v. Ansbro, supra; Pierce v. United Gas & Electric Co., supra; Arnold v. California Portland Cement Co., supra.
The respondent attempts to justify the admission of this testimony upon the implied admissions or statements made by one of the attorneys for the defendant in some of his objections to the testimony, to the effect that it would be competent evidence if it could be shown that the defendant, Bava, made the settlement with Aftergut, but, as we have already seen, it would not be competent evidence even if the settlement with Aftergut was connected up with the defendant, Bava. Certainly these erroneous admissions on the part of one of the attorneys for defendant would not make the objectionable testimony competent or admissible in the face of timely, full and proper objections and assignments of misconduct made by the other attorney for defendant.
Respondent contends that defendant’s attorney, in the cross-examination of the witness Dei, opened the door for the redirect examination above set forth, by propounding the following questions:
"By Mr. Reardon: How long after the accident was it that Rose Bava called to see you in your room in the O’Connor Sanitarium? A. I don’t remember exactly *** must have been five, six, or seven days. Seems to me I saw Rose Bava once in my room. Q. At the O’Connor Sanitarium? A. Yes; at the hospital, with the insurance man with her."
There is no merit in this contention. The only part of this answer that is responsive to the question is "Yes"; the balance was a voluntary statement by a hostile witness, and should have been stricken out by the court, and furnished no justification for this redirect examination.
Respondent also seeks to avoid the harmful effect of this testimony upon the ground that the questions were asked in good faith to try to connect the defendant, Bava, with the settlement, and also on the ground that the court instructed the jury during the cross-examination of the witness Curtaz as follows:
"Ladies and gentlemen, the court has granted the motion on the part of the defendant to strike out all testimony with reference to a settlement between Mr. Bava and Mr. Aftergut, who was a witness here yesterday and who was involved in this collision, and the court instructs you to disregard any testimony as to any such settlement."
These questions may have been asked by plaintiff’s attorney in good faith under the erroneous belief that they were proper. However, it is plain that they were well calculated to, and did, no doubt, have a very prejudicial effect upon the minds of the jurors. This admonition of the court was regarding the settlement between Mr. Bava and Mr. Aftergut. The record does not disclose, neither is it contended, that there was any settlement made with Aftergut by Bava; the only settlement contended for was between Aftergut and the insurance company, and it will be noticed that the cautionary instruction by the court did not advise the jury to disregard the settlement entered into between the insurance company and Aftergut. There was no cautionary instruction to the jury to disregard the evidence concerning the matter of an insurance settlement altogether. The instruction also might well have been understood by the jury as referring only to the testimony of Aftergut and not to the testimony of Dei or Curtaz.
Moreover, we doubt very seriously whether this instruction could have entirely blotted from the minds of the jurors the harmful effect of all this testimony, for the reason that the court had previously on many occasions overruled the strenuous objections of defendant’s attorney, thereby stamping with approval this objectionable and highly prejudicial testimony.
When the knowledge once reaches the jury that a defendant in a personal injury case is protected by insurance, human experience teaches us that this knowledge almost invariably has the effect of inducing the jury to reach a verdict for the plaintiff in a close case, and has the tendency in any case of making the damages larger than they would have been under the same facts had not the fact that the defendant was indemnified against loss been injected into the case, and the court in most cases is helpless to correct its evil effect by instructions. In the case at bar, conceding that the harmful effect of this testimony could have been completely neutralized by prompt and vigorous action on the part of the trial court, yet the instruction given to the jury was too general for this purpose.
The respondent finally contends that the trial court denied a motion for a new trial, based upon the admission of the evidence discussed, and the misconduct of plaintiff’s attorney, and thereby determined that no prejudice was suffered by the defendant by reason of any of the matters to which we have referred, and relies upon the majority opinion in the case of Lafargue v. United Railroads, 183 Cal. 720, 192 P. 538. Our answer to this contention is this: If the only objection raised was that of the misconduct of the attorney, and a motion for a new trial upon that ground had been denied by the trial court, we would be inclined to agree with counsel that the judgment should not be disturbed upon that ground alone, but, when the misconduct of counsel and the erroneous admission of testimony in this case, coupled with the fact that the evidence adduced upon the question of defendant’s negligence is very contradictory, are all considered, we are firmly of the opinion that all these matters, taken together, had a strong tendency to divert the minds of the jurors from the real issues in the case, and caused them to at least render a verdict for a larger amount in favor of the plaintiff and against the defendant than they otherwise would have done. It is not at all improbable that the jury may have returned a verdict in favor of the defendant, had not these prejudicial matters been injected into the case by plaintiff, as the evidence, if believed by the jury, would have been ample to sustain such a verdict.
We conclude, therefore, that there was a miscarriage of justice in this case, and the judgment should be reversed, and it is so ordered.
We concur: NOURSE, J.; STURTEVANT, J.