Bennett v. City of Portland , 124 Or. 691 ( 1928 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The auditorium was not used by the defendant city in its governmental capacity. It was not used generally in the performance of any governmental duty. It is owned and operated by the city in its corporate or proprietary capacity; Chafor v.City of Long Beach, 174 Cal. 478 (163 P. 670, Ann. Cas. 1918D, 106, L.R.A. 1917E, 685); Klein v. Portland, 106 Or. 686 (213 P. 147). Little v. Holyoke, 177 Mass. 114 (58 N.E. 170, 52 L.R.A. 417), is a parallel case.

In the management and operation of the auditorium the city is liable to the same extent and under the same circumstances that a private owner would be: Klein v. Portland, above;Stephens v. Eugene, 90 Or. 167 (175 P. 855); Coleman v.La Grande, 73 Or. 521 (155 P. 468); Esberg Cigar Co. v.Portland, 34 Or. 282 (55 P. 961, 75 Am. St. Rep. 651, 43 L.R.A. 435); Marwedel v. Cook, 154 Mass. 235 (28 N.E. 140). The last case cited is very similar in its details to the one at bar.

"But when a city or town does not devote such building exclusively to municipal uses, but lets it or a part of it for its own advantage and emolument, by receiving rents, or otherwise, it is liable while it is so let in the same manner as a private owner would be. Oliver v.Worcester, 102 Mass. 489 (3 Am. Rep. 485); Hill v. Boston,122 Mass. 344 (23 Am. Rep. 332)." Worden v. New Bedford,131 Mass. 23 (41 Am. Rep. 185); Haley v. Boston, 191 Mass. 291 (77 N.E. 888, 5 L.R.A. (N.S.) 1005).

The cases relied upon by defendant are based on actions against the city where the city, through its public officers, was performing a governmental function: Ernst v. West Covington,116 Ky. 850 (76 S.W. 1089, 105 Am. St. Rep. 241, 3 Ann. Cas. 882, 63 L.R.A. 652); 2 Shearman Redfield on Negligence (6 ed.), § 267; Wahrman v. Board of Education, 187 N.Y. 331 (80 N.E. 192, 116 Am. St. Rep. 609, 10 Ann. Cas. 405).

Haley v. Boston, above, cited by defendant, contains this language in page 292:

"The general rule is well settled in this Commonwealth that a city or town which voluntarily undertakes work of a commercial character, from which it seeks to derive revenue or other special advantage, is liable like a private employer for the negligence of its servants or agents who are engaged therein." Curran v.Boston, 151 Mass. 505 (24 N.E. 781, 21 Am. St. Rep. 465, 8 L.R.A. 243); Mahoney v. Boston, 171 Mass. 427 (50 N.E. 939).

"It is not material whether the undertaking proved profitable and evidence on that point properly was excluded." Collins v.Greenfield, 172 Mass. 78, 81 (51 N.E. 454); Little v.Holyoke, 177 Mass. 114, 117 (58 N.E. 170, 52 L.R.A. 417);Chafor v. City of Long Beach, above.

The extent of the city's liability for persons injured in the building when the same has been hired to some other person depends upon the contract of leasing. Plaintiff was not a trespasser. She was there by invitation of the person having the right to the use of the building. She was an invitee and the city owed to her reasonable care to prevent her injury while there: Cooley on Torts (3 ed.), 1258. This question is one of fact and the defendant is concluded by the verdict of the jury. If the city undertook, through its own employee, to janitor the building, attend to the lights, as well as furnishing light, then it would be liable for any neglect on its part to perform its duty. In the instant case that question was one of fact. The jury having found against the city on that issue, this court cannot interfere with its verdict. It is concluded thereby.

It is claimed by defendant that plaintiff wilfully brought out the fact in the presence of the jury that defendant was insured against liability under the circumstances involved in the instant case. It relies upon the rule announced in Tuohy v.Columbia Steel Co., 61 Or. 527, 531 (122 P. 636), that a wilful attempt to bring to the attention of the jury the fact that defendant, in an action for personal injuries, was insured, was such misconduct as would justify a mistrial. This rule has been followed consistently since that decision, but it does not apply where the fact of insurance is brought out incidentally while the plaintiff is seeking to adduce otherwise competent testimony. As we understand the rule, it applies only where the fact of insurance is brought out for the express purpose of prejudicing the defendant's case in the eyes of the jury. It is not permissible to ask otherwise immaterial or irrelevant questions or to make improper suggestions in order to inform the jury that defendant is insured against casualty. Where, however, the fact of insurance is brought out under proper examination, fairly conducted for the purpose of getting all of the pertinent facts before the jury, it is not error: Wells v. Morrison, 121 Or. 604, 607 (256 P. 641); Melcher v. Connell, 119 Or. 626, 628 (250 P. 742);Coblentz v. Jaloff, 115 Or. 656 (239 P. 825).

Defendant cannot complain because of its insurance being revealed to the jury under the circumstances here involved. Plaintiff had introduced certain X-ray photographs which, it was claimed, showed three ribs broken from the back bone and other injuries. Defendant produced a doctor as witness who had taken X-rays which he claims did not show any fractures. In cross-examining said doctor, plaintiff's attorney asked him for whom he took the X-rays. The witness named a complete stranger to the proceedings, whereupon counsel for plaintiff asked who was this stranger and was informed he represented the Travelers' Insurance Company. We think the plaintiff was in her rights in inquiring who took the pictures: Shoemaker v. Bryant Lbr.Co., 27 Wn. 637, 643 (68 P. 380); Jones v. Sinsheimer,107 Or. 491, 494 et seq. (214 P. 375).

Defendant made no objection at the time but after the answers were elicited moved to strike out the answers without designating the particular answers moved against. Later plaintiff's counsel offered to consent that the testimony of said witness might be stricken out and the court offered to instruct the jury to disregard it, but appellant's counsel refused both offers. Litigants should not be encouraged to sit by and permit errors to be incurred in the trial for the purpose of having ground for appeal: Jackson v. Alabama, 94 Ala. 85 (10 So. 509); 9 Ency. of Ev. 131, § 2.

The court did not abuse its discretion in disallowing defendant's request to amend its answer. The tendered amendment would have materially changed the issues and the offer to amend was not made until after the trial was well advanced.

This court will not interfere with the ruling of the Circuit Court on the matter of amending the pleadings, except where we are satisfied there has been an abuse of discretion and injustice thereby done. That result does not appear in the instant case.

The judgment is affirmed. AFFIRMED.

RAND, C.J., and McBRIDE and ROSSMAN, JJ., concur.