Black, Donald F.

English

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Volume 38 Issue 4 Article 9 June 1932 Evidence--Admissibility of Evidence That Defendant Has or Has Not Liability Insurance Donald F. Black West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Evidence Commons Recommended Citation Donald F. Black, Evidence--Admissibility of Evidence That Defendant Has or Has Not Liability Insurance, 38 W. Va. L. Rev. (1932). Available at: https://researchrepository.wvu.edu/wvlr/vol38/iss4/9 This Student Note is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. STUDENT NOTESfilling station where no conforming use of the land would be re-munerative.' Construction begun before the amending of a zon-ing law is not ordinarily affected thereby" but a subsequentordinance may extinguish a building permit even though expendi-tures have been made in reliance on it. 'The revisers of the West Virginia Code largely adopted theStandard State Zoning Act, and as a consequence the state has astatute similar to the one in question.1 Its constitutionality hasnot been adjudicated. The discretion of boards of appeals or ad-justment appears to be judicially controllable, and in view of thedesirability of the delegation of such a discretion, as an adjunctto modern regulative machinery, it seems that it should not beheld invalid.-DoNAmD M. HuroN.EVIDENCE - ADMISSIBILITY OF iVIDENm C E THAT DEFENDANTHAS OR HAS NOT LiABILITY INSURANCE. - In an action for per-sonal injury, it is the general rule that informing the jury of theexistence of insurance, when evidence of such is inadmissible onany issue in the case, constitutes grounds for a new trial.' It isa matter, within limits, in the discretion of the trial court,' andsome courts hold the fault is cured by proper instructions to thejury.' All hold, however, that without such instructions the ad-mission of such evidence requires a new trial.The reason assigned is that, in cases of personal injury, it in-creases the already strong tendency of juries to be influenced, es-pecially where a corporation is defendant, by sympathy andprejudice. Juries confronted by the injuries to the plaintiff aretoo apt to lose sight of the real issues and true merits of the caseSundlun v. Zoning Board, 50 R. I. 107, 145 Atl. 451 (1929).Caponi v. Walsh, 228 App. Div. 86, 238 N. Y. Supp. 438 (1930).1'City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 Pac. 928 (1928);Matter of Fox Lane Corp., 216 App. Div. 813, 215 N. Y. Supp. 334 (1926);People v. Kleinert, 237 N. Y. 580, 143 N. E. 750 (1924), writ of error dis-missed 268 U. S. 646, 45 S. Ct. 618 (1925); Gresnaugh v. Allen Theatre andRealty Co., 33 R. I. 120, 80 Atl. 260 (1911).18W. VA. REV. CODE (1931) c. 8, art. 5, § 8(c).IHollis v. United States Glass Co., 220 Pa. 49, 69 AtI. 55 (1908); Wilkinsv. Schwartz, 101 W. Va. 337, 132 S. E. 887 (1926).2 Bradley v. D. E. Cleary Co., 86 N. J. L. 338, 90 At. 1015 (1914).*Gortz v. Ravenel, 127 S. C. 505, 121 S. E. 369 (1924) ; Puller v. Mazetti,231 Mich. 213, 203 N. W. 868 (1925).1Black: Evidence--Admissibility of Evidence That Defendant Has or Has NotPublished by The Research Repository @ WVU, 1932WEST VIRGINIA LAW QUARTERLYand award excessive damages, since they feel that such are to betaken from the coffers of so impersonal and supposedly wealthya party as a large insurance company.It is the general rule that the plaintiff is not permitted toshow that the defendant is insured against accident and liability.'The mere fact, however, that evidence may disclose that the de-fendant is insured does not necessarily make such evidence inad-missible. It is admissible regardless of the showing of insurance,with its consequent prejudicial effect, if it is otherwise relevantto some material issue in the case. Thus where ownership of theautomobile causing the injury is denied, ownership may be evi-denced by showing that the car is insured in the defendant'sname.' Moreover, credibility of a witness may be impeached byshowing bias in favor of an insurance company, for example, thatthe examining physician was in the employ of the insurance com-pany.' If the insurance company places its attorney on the standhe may be cross-examined as to his employment by the company.:An admission may contain matter showing insurance and still beadmissible.8 Agency and employment may be shown by evidencethat the principal or employer had the party insured along withother employees or agents.! Perhaps evidence of insurance is ad-missible on the issue of negligence where in a particular fact sit-uation the probative qualities of the evidence outweigh itsprejudicial qualities."The defendant is not in general permitted to show that theplaintiff has liability insurance.' The reason for not admittingthis evidence is the same as that assigned for not generally allow-ing the plaintiff to show that the defendant is insured. It is onlyremotely relevant, if at all, and tends to prejudice the jury infavor of the defendant.Is it permissible for the defendant to show that he is not in-'Walters v. Appalachian Power Co., 75 W. Va. 676, 84 S. E. 617 (1915);James Stewart and Co. v. Newby, 266 Fed. 287, 56 A. L. R. 1418 (C. C. A.4th 1920).5Paepke v. Stadelman, 300 S. W. 845 (Mo. App. 1928).0 Di Tommaso v. Syracuse University, 218 N. Y. 640, 112 N. E. 1057 (1916).7Lenahan v. Pittston Coal Mining Co., 221 Pa. 626, 70 Atl. 884 (1908).8 Ward v. De Young, 210 Mich. 67, 177 N. W. 213 (1920).8 Davis v. North Carolina Shipbuilding Co., 180 N. C. 74,104 S. E. 82 (1920).10 Herschensohn v. Weisman, 80 N. H. 557, 119 Atl. 705, 28 A. L. R. 514(1923). In the usual case evidence of insurance is not considered admissibleon the issue of negligence. Fletcher v. Saunders, 132 Or. 67, 284 Pac. 276(1930); Bianchi v. Miller, 94 Vt. 378, 111 Atl. 524 (1920).A Brody v. Cooper, 45 R. I. 453, 124 Atl. 2 (1924).2West Virginia Law Review, Vol. 38, Iss. 4 [1932], Art. 9https://researchrepository.wvu.edu/wvlr/vol38/iss4/9STUDENT NOTESsured, or that he is only partially insured? It has been held inseveral recent decisions? that such evidence is not admissible, atleast on the issue of negligence, even when the jurors have beeninterrogated on the voir dire as to their connections with an in-surance company." The reason assigned is that the evidence isan attempt to show pecuniary status of the defendant and isprejudicial. In Toulborg v. Andersene' the court held it was im-proper for defendant in a personal injury action to show he wasnot insured, where the plaintiff made no attempt to show thecontrary.To-day the fact that liability insurance is very generally car-ried by automobile owners, and employers is common knowledgeamong jurymen. Would not, then, the very reason that excludeda direct showing that defendant had insurance, tend to make itpermissible for him to show that he does not have insurance? Ifjuries trying the case are apt to assume that the defendant iscovered by insurance, should he not be allowed to introduce suchevidence at least for the sole purpose of removing this prejudiceby a direct showing that he is not insured? At any rate muchcould be said for that view where on the voir dire an inferencehas been raised that an insurance company is interested in thecase. However, these points were specifically raised in two recentcases; the former in Piechuck v. Magusia'5 and the latter in Ma-lone v. Small' and the courts held in both cases that the evidencewas inadmissible and its admission required a new trial.It would seem, then, that as a general rule in a personal in-jury action, evidence that either party has or has not liability in-surance is inadmissible, unless specially made so by peculiar cir-cunstances and unusual issues of the particular case. Even thenthe fact of insurance is jealously guarded and, if possible, keptfrom the jury.7-DoNALD F. BLAcx."Fox v. Missouri Jobbing House, 32 S. W. (2d) 130 (Mo. App. (1930);Malone v. Small, 291 S. W. 163 (Mo. App. 1927); Tenetz v. St. Louis Limeand Cement Co., 252 S. W. 65 (Mo. 1923); Taulborg v. Anderson, 119 Neb.273, 228 N. W. 528, 67 A. L. R. 642 (1930); Piecluck v. Mffagusiak, 82 N. H.429, 135 Atl. 534 (1926).23Malone v. Small, supra n. 12.1 Supra n. 12.'1 Supra n. 12.10 Supra n. 12.c~urdy v. Flibotte, 83 N. H. 143, 139 AtI. 367 (1927). (It was statedby the court, that a reference to insurance should be excluded from an admis-sion if possible).3Black: Evidence--Admissibility of Evidence That Defendant Has or Has NotPublished by The Research Repository @ WVU, 1932

Evidence--Admissibility of Evidence That Defendant Has or Has Not Liability Insurance

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Evidence--Admissibility of Evidence That Defendant Has or Has Not Liability Insurance

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