Garber v. Martin , 261 Or. 410 ( 1972 )

494 P.2d 858 (1972)

Harold GARBER, Appellant,
v.
William F. MARTIN and Barbara B. Martin, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted October 26, 1971. Decided March 1, 1972. Rehearing Denied March 21, 1972.

Roger L. Dick, The Dalles, argued the cause for appellant. On the briefs were Dick & Dick, The Dalles.

Walter J. Cosgrave, Portland, argued the cause for respondents. On the brief were Maguire, Kester & Cosgrave, Portland.

Argued and Submitted at Pendleton October 26, 1971.

DENECKE, Justice.

The plaintiff recovered a verdict in his personal injury action. The trial court granted defendants' motion for new trial. Plaintiff appeals.

One of the grounds for new trial was the injection of insurance on cross-examination by a witness called by defendants. The trial court, when granting the new trial, stated that when the four grounds urged to be the basis for the motion for new trial were considered together, "and particularly the injection of insurance into the case, even though involuntarily done, it is my opinion that defendants did not get a fair trial * * *."

When the fact that the defendant is insured has been unintentionally injected into the case we have held that whether or not to grant a mistrial is within the discretion of the trial court.

"* * * 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." Johnson v. Hansen, 237 Or. 1, 6, 389 P.2d 330, 332, 390 P.2d 611 (1964).

"* * * If insurance is not relevant, but has come into the case through inadvertence, whether or not to grant a mistrial is in the discretion of the trial court. Denton v. Arnstein, 197 Or. 28, 54-56, 250 P.2d 407 (1952). This discretion is largely uncontrolled by this court. We permit the trial court to decide whether or not prejudice has been created. Wells v. Morrison, 121 Or. 604, 256 P. 641 (1927)." Blake v. Roy Webster Orchards, 249 Or. 348, 354-355, 437 P.2d 757, 760 (1968).

The dissenting Justices in DeSpain v. Bohlke, Or., 486 P.2d 545, 549 (1971), would go further:

"The unnecessary injection of insurance, be it intentional or inadvertent, is prejudicial and ground for a mistrial unless the court can point to some special circumstance negating the likelihood of prejudice." 486 P.2d at 550.

In the instant case it is not necessary to take the step urged by the dissenters. The trial court found the unintentional injection of insurance was prejudicial and deprived the defendants of a fair trial and it, therefore, should have granted a mistrial. Such a finding and ruling were within its discretion.

Affirmed.

HOWELL, J., did not participate in this decision.

TONGUE, Justice (dissenting).

As stated by the majority, the trial judge granted defendant's motion for new trial because he was of the opinion that defendants did not get a fair trial because of the "cumulative effect" of the four grounds urged as a basis for that motion "and particularly the injection of insurance into the case, even though involuntarily done."^[1]

The majority would, for the first time in Oregon, affirm the granting of a new trial in a personal injury case upon the ground that the inadvertent mention of insurance by a witness, although in response to a proper question, is of itself a sufficient ground for the granting of a new trial. The reason given by the majority for reaching such an unprecedented result is that the granting of a new trial in such a case is a matter within the "largely uncontrolled" discretion of the trial judge, quoting from Blake v. Roy Webster Orchards, 249 Or. 348, 354-355, 437 P.2d 757 (1968). The majority would reach this result despite the fact that defendant's counsel made no objection, motion to strike or motion for mistrial at the time of the mention of insurance by the witness, but waited until the end of his testimony and until the next recess before making a motion for mistrial, which was then denied.

I most respectfully dissent from the opinion by the majority because I believe that Blake is not controlling under the facts of this case and also because I believe that the result of the majority opinion is both unsound and unrealistic and is also contrary to both the clear weight of authority by other courts and the previous practice in Oregon.

1. Any error resulting from the inadvertent mention of insurance was waived by defendant's failure to promptly object and move for a mistrial.

This is an action for personal injuries suffered by the driver of a truck as the result of what was claimed to be a defective steering mechanism. Defendant's expert witness, upon cross-examination by plaintiff's counsel, was asked whether he had seen the "remaining portion of the steering mechanism." In answer to that question defendant's witness stated:

"Yes, I think we did. The General Adjustment Bureau Insurance man took me up * * * to where the vehicle was * * *."

No motion was made at that time by defendant's counsel to either strike that answer or to ask that the jury be instructed to disregard it, much less to ask that a mistrial be declared. Instead, defendant's counsel allowed the plaintiff's attorney to complete his cross-examination (extending over nine additional transcript pages) and then proceeded to complete his redirect examination of the same witness. It was only when the court then called its next recess that defendant's counsel, in chambers, made a motion for mistrial upon another ground and, in that connection, urged "as an additional ground" for that motion that "a mention of insurance" had been made by his own witness, despite his warning the witness "about bringing out any mention of insurance."

Defendant's counsel then conceded that the mention of insurance was not deliberate and that "It's solely within the discretion of the court and in the light of everything else that happened in the case." The trial judge, after stating "I realize that" and agreeing with the statement that the mention of insurance was not deliberate, denied defendant's motion for a mistrial.

According to an annotation in 4 A.L.R. 2d 761 (1949), at p. 820:

"The conduct of defendant's counsel may be such as to estop him from successfully making the objection that a reference to insurance is such prejudicial error as to require the declaration of a mistrial."

Among the cases cited in support of that rule is the case of Hatfield v. Levy Bros., 18 Cal. 2d 798, 117 P.2d 841 (1941), in which it was held (at p. 849) that the defendant might not successfully claim prejudice from the inadvertent mention of insurance because no objection was made until after the witness had left the stand and because defendant never at any time made a motion to strike the answer or ask the court to instruct the jury to disregard the reference to insurance. See also other cases to the same effect as cited in 4 A.L.R.2d, supra, at 820-821.

This court has not previously had occasion to rule upon the question whether failure of counsel to promptly object or to move to strike or to ask the court to instruct the jury to disregard a question or answer in which insurance is mentioned inadvertently, or to promptly move for a mistrial, will bar a defendant from a subsequent motion for mistrial or new trial on that ground.

This court has held in many cases, however, that the failure to object promptly to an improper question waives such an objection and that, in addition, it is necessary to move promptly to strike an improper answer by a witness to a proper question.^[2] This court has also held that in such an event, the trial judge should also be requested to instruct the jury to disregard such testimony^[3] and that ordinarily the admonition by a trial judge to a jury to disregard improper testimony cures such an error except in extreme circumstances, such as a direct appeal to passion and prejudice (which this was not).^[4] In addition, the court has held that a motion for mistrial must be made promptly and that such a motion when made later is ordinarily too late.^[5]

There are particular reasons why these same rules should be applicable and controlling in cases in which, in response to proper questions, improper answers are given in which mention of insurance is made inadvertently. Indeed, this court has already held that the admonition by a trial judge to a jury to disregard an inadvertent reference by a witness to insurance cures such an error (if any), at least in the ordinary case, such as this.^[6]

If defendants' counsel in personal injury cases are not required to take such action, and to do so promptly, they will be encouraged, by the making of a tardy and pro forma motion for mistrial in the expectation that it will be denied, to "gamble" on a favorable verdict and still retain a "hedge" in the record against an unfavorable verdict, rather than run the risk of having a prompt and vigorous motion for mistrial granted, with the resultant expense and inconvenience of a retrial.^[7] A further reason why these same rules should be applied in cases involving the inadvertent mention of insurance is the extremely dubious prejudice of a reference to insurance upon a modern jury in the usual automobile accident cases, as discussed below.

It follows that the trial court did not err in denying defendant's motion for mistrial. It also follows that the trial court would not have erred in denying defendant's subsequent motion for a new trial on that same ground. Such a conclusion does not completely dispose of this case, in which the trial judge granted, instead of denied, defendant's motion for a new trial. This is because a trial court may grant a new trial because of an error in the admission of testimony, regardless of whether a proper objection, exception or motion was made by counsel.^[8] It is still required, however, that there must have been a substantial and prejudicial error, as next discussed.

2. A trial court can properly grant a new trial in such a case only when there has been substantial and prejudicial error. The inadvertent mention of insurance in this case was not substantial and prejudicial error.

The majority holds that "[where] the fact that defendant is insured has been unintentionally injected into the case we have held that whether or not to grant a mistrial is within the discretion of the trial court," quoting from Johnson v. Hansen, 237 Or. 1, 6, 389 P.2d 330, 390 P.2d 611 (1964), and Blake v. Roy Webster Orchards, supra. This appears to be in accord with defendant's contention that under Blake and Roy Webster Orchards the granting or denial of a new trial is within the "largely uncontrolled" discretion of the trial judge and will be reversed only for a manifest abuse of that discretion.

ORS 17.610 authorizes the granting of a new trial "for any of the following causes materially affecting the substantial rights of such party:

"(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial.

"* * *

"(7) Error in law occurring at the trial, and excepted to by the party making the application."

In this case, defendant does not contend that the inadvertent mention of insurance by a witness in response to a proper question was an "irregularity in the proceedings" under ORS 17.610(1). Instead, defendant's motion for a new trial contended that the denial of its motion for mistrial upon the ground that defendant's witness, on cross-examination, made a reference to insurance was an "error(s) in law occurring at the trial and excepted to by the defendant," under ORS 17.610(7).

It is true that this court has recognized that the granting of a new trial rests largely within the sound discretion of the trial judge, Armstrong v. Stegen, 251 Or. 340, 342, 445 P.2d 509 (1968), and that it requires a clearer case or stronger showing to authorize a reversal of an order granting a new trial than it does to reverse an order overruling a motion for a new trial. Burrows v. Nash, 199 Or. 114, 121, 259 P.2d 106 (1953).

On the other hand, this court held more recently in McIntosh v. Lawrence, 255 Or. 569, 572, 469 P.2d 628, 629 (1970), in reversing the granting of a new trial that:

"* * * A new trial may be granted only where there is a basis for a finding by the trial judge of substantial prejudicial error. * * *"

Indeed, in this day of crowded trial dockets, it is inconsistent with the efficient administration of justice to tolerate the granting of a new trial in any case for alleged errors of law, as in this case, unless "there is a basis for a finding by the trial judge of substantial prejudicial error."

In the leading case of Timmins v. Hale, 122 Or. 24, 256 P. 770 (1927), this court pointed out that prior to the adoption in 1910 of Art. VII, § 3 of the Oregon Constitution the granting or denial of a motion for a new trial was a matter resting within the discretion of the trial court. The court then quoted (at p. 30, 256 P. at p. 772) from Archambeau v. Edmunson, 87 Or. 476, 486, 171 P. 186 (1918), in which it was held that:

"Since that amendment became operative it has been held that the granting of a new trial was not a matter of discretion; that an order for the rehearing of a cause could not be sanctioned except when the court had committed some error * * *" (Emphasis added)

This court in Timmins then held (122 Or. at p. 32, 256 P. at p. 773) that although the trial court may grant a new trial despite the absence of proper objection or exception by counsel:

"* * * before the court is authorized to act, the error must have been prejudicial and it must have prevented the party in whose interest the power is invoked from having his case fairly presented and tried, and we think it must have been an error which if the matter had been seasonably called to the attention of the court and an adverse ruling made and an exception taken, would have been sufficient to justify the reversal of the judgment upon appeal; * * *"

Finally, this court in Timmins held, at p. 33, 256 P. at p. 773:

"There are other grounds provided for by statute for the setting aside of a judgment and the granting of a new trial in the granting of which the trial court exercises a discretionary power. But as to the matters hereinbefore referred to, namely, the setting aside of a judgment and granting a new trial because of errors of law occurring upon the trial, the court in granting the motion or in setting aside the judgment upon his own motion exercises no discretionary power, for in such case the court is controlled by positive rules of law. * * *" (Emphasis added)

Although in the intervening years since Timmins there have been some "loose expressions" by this court giving the impression of a return to the old rule that the granting or denial of a new trial is discretionary, even for alleged errors of law, the court has continued to recognize the correctness of this analysis. See, for example, Arthur v. Parish, 150 Or. 582, 47 P.2d 682 (1935), and Foxton v. Woodmansee, 236 Or. 271, 284-286, 386 P.2d 659, 388 P.2d 275 (1933).^[9]

Thus, in Foxton, as in Timmins, we reversed the granting of a new trial and remanded the cause with instructions to enter judgment on the jury verdict and in doing so rejected (at p. 284, 388 P.2d at p. 276) the contention that "in view of the Trial Court's exercise of its discretion in granting a new trial, the proper approach should have been to determine whether it had abused its discretion," rather than to "conduct(s) its search as if it were looking for reversible error." The court also again quoted with approval (at pp. 285-286, 386 P.2d 659, 388 P.2d 275) the rule as previously stated in Timmins. In turn, we cited Foxton as authority for our more recent holding in McIntosh v. Lawrence, supra, in which we again reversed the granting of a new trial for the defendant and held (255 Or. at p. 572, 469 P.2d at p. 629) that "a new trial may be granted only where there is a basis for a finding by the trial judge of substantial prejudicial error."

Now to apply these well-established rules to a case involving the inadvertent mention of insurance by defendant's witness in response to a proper question. This court has often affirmed the denial of motions for new trial for the inadvertent mention of insurance by a witness in response to a proper question. Blake v. Roy Webster Orchards, supra, is such a case. This court has also held repeatedly that the denial of a motion for mistrial based upon the inadvertent mention of insurance by a witness in response to a proper question is not an error of law. See Goodale v. Hathaway, 149 Or. 237, 239, 39 P.2d 678 (1935). See also Fogelsong v. Jarman, 168 Or. 177, 181, 121 P.2d 924 (1942),^[10] and Stone et al. v. Oliver, 135 Or. 4, 7, 294 P. 346 (1930), and cases cited therein.

For these reasons, it follows that because the trial judge did not commit error in denying defendant's motion for mistrial, that some alleged ground for mistrial (the inadvertent mention of insurance by defendant's witness in response to a proper question) cannot properly be contended to be an "error of law" for the purpose of determining whether defendant's motion for a new trial should have been granted or denied. It also follows, in my view, that the trial court in this case had no discretionary power to grant a new trial, but that because it committed no error in the denial of defendant's motion for mistrial, it could not properly enter an order granting a new trial on that ground. Thus, as in Timmins, Foxton and McIntosh, that order should be reversed with instructions to enter judgment on the jury verdict.

For these same reasons, our previous decision in Blake v. Roy Webster Orchards, supra, has no application to this case. The motion for mistrial was made promptly in that case, with no contention that defendant had waived its right to move for a mistrial by failing to make proper and timely objections or motions of any kind. Of more importance, this court in Blake did no more than to hold that it was not error to deny a motion for mistrial in a case in which there had been an inadvertent mention of insurance. In other words, the statement in Blake that the trial judge had a "largely uncontrolled" discretion to grant, as well as to deny, a motion for a mistrial based upon the inadvertent mention of insurance is no more than dictum. At the least, the quotation of that statement by the majority in this case does not support its conclusion that a trial judge has equal discretion to grant, as well as to deny, a motion for a new trial on such a ground, particularly after denial of the motion for mistrial on the same ground.

It follows that Blake is clearly distinguishable and is not controlling over the result in this case.

In this case it also appears from the record that the trial judge may have been misled by what also must have been an "inadvertent" statement by counsel to the effect that Blake v. Roy Webster Orchards, supra, was an "almost identical case," and that the trial court was reversed in that case. As previously noted, however, Blake was not an "identical case" for the reason that in Blake this court affirmed the denial of a motion for mistrial on that ground. As stated in Stanich v. Buckley et al., 230 Or. 126, 129, 368 P.2d 618, 622 (1962), "* * * [I]t is our duty to reverse the trial court if the order granting the new trial is based upon an erroneous conception of the law."

3. The inadvertent mention of insurance by a defendant's witness in response to a proper question is not of itself prejudicial error so as to be a proper ground for either a mistrial or a new trial in the absence of other facts.

In addition, the time is long overdue, in my view, for this court to re-examine the rule as stated in Blake v. Roy Webster Orchards, supra, whether considered as dictum or not, and to recognize that the inadvertent mention of insurance by a defendant's witness in response to a proper question is not of itself prejudicial error so as to be a proper or sufficient ground for the granting of either a motion for a mistrial or for a new trial, at least in the absence of other facts.^[11]

At the outset, it must also be recognized that one of the difficulties in dealing with this question is that it involves two different problems: (1) the impropriety in the conduct of an attorney who deliberately and intentionally brings insurance into a case for an improper purpose, and (2) the possible prejudice to a jury as a result of the mention of insurance.

When an attorney is guilty of misconduct by deliberately bringing insurance into a case for an improper purpose, the granting of a mistrial is proper, not so much because of possible prejudice to the jury, but as a so-called "prophylactic" rule to discourage such improper conduct by attorneys. When, however, the mention of insurance is inadvertent, particularly when the fact of insurance is mentioned in response to a proper question, no impropriety in the conduct of counsel is involved. The question of the possibility of prejudice to a jury from the mention of insurance, however, may be the same whether the fact of insurance is mentioned inadvertently or as the result of improper conduct by counsel.

Of greater importance, however, is the fact that the rule as stated by the majority to be the proper test to be applied in the granting or denial of a motion for mistrial, and which would also be adopted by the majority in this case as a test to be applied in the granting or denial of a motion for a new trial, even after the denial of a mistrial, is a rule which, in effect, presumes to be prejudicial even the inadvertent mention of insurance by a witness in response to a proper question, in the absence of "any countering influences that arise from his own special knowledge of the conditions in his courtroom."^[12]

It is true that such a test had been stated by this court in Johnson v. Hansen, 237 Or. 1, 6, 389 P.2d 330, 390 P.2d 611 (1964), as a test to be applied by a trial court in the granting or denial of a motion for mistrial. But in Blake v. Roy Webster Orchards, supra, this court did not recognize or reaffirm that statement. On the contrary, this court in Blake, in affirming a trial court for the denial of a motion for mistrial based upon the inadvertent reference to insurance by a witness, recognized (249 Or. at pp. 355-356, 437 P.2d at p. 760) the "unstated reason" for conferring discretion on the trial judge to deny a mistrial in such cases to be:

"* * * that there is doubt whether or not a defendant is really prejudiced if a jury learns that the defendant has insurance. Johnson v. Hansen, 237 Or. 1, 16-18, 389 P.2d 330, 390 P.2d 611 (1964). There is a belief that many jurors assume that the defendants in most tort cases are covered by insurance. Almost all jurors carry automobile insurance and many jurors carry general liability insurance. The desirability and prevalence of having insurance to protect against many forms of liability is widely advertised by the insurance industry.

"Because the prejudicial effect of the introduction of evidence that the defendant is insured is doubtful, the heavy penalty of a mandatory mistrial when insurance is unintentionally injected is not deemed necessary."

More recently, in DeSpain v. Bohlke, 92 Or.Adv.Sh. 1592, 1594, 486 P.2d 545 (1971), the majority of this court stated that "[t]he probability of prejudice [resulting from an inadvertent reference to insurance by a witness in response to a proper question] is too remote to cause reversal," thus adopting, in effect, the position taken in the special concurring opinion by Justice O'Connell in Johnson v. Hansen, supra, 237 Or. at 16-17, 389 P.2d at 336, as follows:

"Looking now at the other side of the scale — the probability of prejudice to defendant resulting from plaintiff's inquiry — can it be said that the inquiry had a prejudicial effect? There is substantial support in the adjudicated cases as well as in the texts and legal periodicals for the view that the mention of insurance has little effect upon the jury's verdict. For example, in Muehlebach v. Mercer Mortuary and Chapel, Inc., 93 Ariz. 60, 378 P.2d 741, 744 (1963), the court said ``the prejudicial content of a reference to liability insurance is largely a thing of the past. And it has, in part, been made a thing of the past by the expenditure of vast sums of money by insurance companies to educate prospective jurors of the claimed relation between large verdicts and insurance rates.'

"Even without the influence of such advertising it is likely that the average juror would, in most cases, assume that defendant was insured. Wigmore, in advocating the abolition of the nondisclosure rule makes note of this point as follows:

``In the second place, liability-insurance is made compulsory in many States and for certain classes of liability; hence, in such cases the fact of insurance is notorious under the law.

``In the third place, and apart from compulsory insurance, the general prevalence of liability insurance for automobile injuries, is known to the jurors; hence for the law to forbid any disclosure of it in the course of the trial seems to be merely a piece of hypocritical futility.' 2 Wigmore, Evidence § 282a at 146 (3d ed 1940).

This theme runs through a number of the cases criticizing the nondisclosure rule. * * *"

An examination of opinions by courts in other states since Johnson v. Hansen was decided in 1964, fully confirms this view.^[13] Indeed, it is now more likely that jurors in automobile accident cases would be prejudiced against a party by disclosure of the fact that he does not carry insurance, than by the fact that he does so.

Of equal significance is the fact that in actual practice this court has never reversed a trial court for denying a motion for mistrial for the inadvertent mention of insurance by a defendant's witness in response to a proper question,^[14] but has invariably affirmed trial judges for denying motions for mistrial in such cases.^[15] Neither has this court ever had occasion to affirm a trial court for granting a mistrial on such a ground. On the contrary, insofar as the cases appealed to this court are concerned, it appears that trial courts have also, until this case, invariably denied motions for mistrial and motions for new trial on this same ground.^[16]

This was just such a case. In this case the reference to the fact of insurance by defendant's witness was not only unintentional, but no facts appear in the record, other than that inadvertent reference, to support an inference that defendant was prejudiced in any way as a result.^[17] On the contrary, this was a case in which plaintiff claimed to have suffered an injury because of a defect in the steering mechanism of a truck owned by the operator of a ranch and a modern jury would normally assume that such a vehicle would be covered by some kind of insurance. As stated by this court in Johnson v. Hansen, supra, 237 Or. at 6, 389 P.2d at 332:

"* * * 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 case. * * *"

It follows that the granting of a new trial in this case, after previously and properly denying a motion for mistrial, was contrary to past practice and precedent in Oregon. It also follows that by affirming the granting of a new trial because of the bare and inadvertent mention of insurance by a defendant's witness in response to a proper question, to which no objection or motion to strike was made and no prompt motion for mistrial, and after previously denying a subsequent motion for mistrial, the majority would give its sanction to a rule which is contrary to the great weight of recent authority, as well as the actual practice by the courts of this state, both trial and appellate.

In my judgment, the "insurance bugaboo" is enhanced, rather than disminished, by the majority opinion and it places the "largely uncontrolled discretion" of the trial court on an even higher peak of preeminence.^[18] To approve the setting aside of a jury verdict in this case, contrary to uniform past practice, is also a retreat from the goal of equal justice under law.

For all of these reasons, I must respectfully dissent.

O'CONNELL, C.J., joins in this dissent.

NOTES

[1] Although not expressly so stated, it would appear to be obvious from both the majority opinion and the opinion of the trial judge that the remaining three grounds for the motion for new trial would not have been sufficient, either separately or as a whole, as a proper basis for an order granting a new trial. An examination of the record confirms that conclusion.

[2] Savage Adm'x v. Palmer et al., 204 Or. 257, 274, 280 P.2d 982 (1955). See also Wallender v. Michas, 256 Or. 587, 592, 475 P.2d 72 (1970); Derrick v. Portland Eye etc. Hospital, 105 Or. 90, 100, 209 P. 344 (1922); and DeSpain v. Bohlke, 92 Or.Adv.Sh. 1592, 1598, 486 P.2d 545 (1971).

[3] Sargent v. Foland, 104 Or. 296, 303, 207 P. 349 (1922).

[4] Bratt v. Smith, 180 Or. 50, 60, 175 P.2d 444 (1946). See also Newbern v. Exley Prod. Exp. Co., 212 Or. 458, 477-478, 320 P.2d 678 (1958); Lane v. Hatfield, 173 Or. 79, 85, 143 P.2d 230 (1943); and State v. Gustafson, 248 Or. 1, 6, 432 P.2d 323 (1967).

[5] See In Re Kries' Estate, 182 Or. 311, 320, 187 P.2d 670 (1947). See also Pond v. Jantzen Knitting Mills, 183 Or. 255, 267, 190 P.2d 141 (1948). But see Bratt v. Smith, 180 Or. 50, 60, 175 P.2d 444 (1946).

[6] Melcher v. Connell, 119 Or. 626, 628-629, 250 P. 742 (1926); Jones v. Sinsheimer, 107 Or. 491, 495-496, 214 P. 375 (1923); and Wells v. Morrison et al., 121 Or. 604, 608, 256 P. 641 (1927). See also Coblentz v. Jaloff, 115 Or. 656, 664, 239 P. 825 (1925). This is in accord with the rule as stated in Annot., 4 A.L.R. 2d 761, 821-22 (1949).

[7] Thus, in Bennett v. City of Portland, 124 Or. 691, 265 P. 433 (1928), in which defendant made no objection to an inadvertent mention of insurance, we said (at 697, 265 P.2d at 435):

"* * * 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."

Compare Parmentier v. Ransom, 179 Or. 17, 23, 169 P.2d 883, 886 (1946), and Godvig v. Lopez, 185 Or. 301, 320-321, 202 P.2d 935 (1949), holding that when an exception to error of law is taken for the first time on motion for a new trial, "* * * the rule still remains ``that it is not error alone, but error legally excepted to that constitutes grounds for reversal.'"

[8] See Strandholm v. General Const. Co., 235 Or. 145, 382 P.2d 843 (1963) (granting of new trial for intentional mention of insurance was affirmed despite absence of proper objection on trial).

[9] In Arthur v. Parish, 150 Or. 582, 47 P.2d 682 (1935), we said, at pp. 588-589, 47 P.2d at p. 684:

"* * * Some loose expressions may be found in various opinions of this court relative to the exercise of discretion in granting new trials, but we think no discretion is involved concerning positive rules of law. The law is either one thing or another and the trial court has no discretion in its application to the facts of a given case. An appellate court, however, is more liberal in its consideration of the rulings of a trial court where a new trial has been granted than where a judgment is sought to be reversed on appeal." See also Goggan v. Consolidated Millinery Co., 242 Or. 328, 332, 409 P.2d 174 (1965).

For a more recent decision to the same effect, see Landolt v. The Flame, Inc., 93 Or.Adv.Sh. 1826, 492 P.2d 785 (1972).

[10] See also cases cited in note 15.

[11] In Johnson v. Hansen, 237 Or. 1, 17, 389 P.2d 330, 390 P.2d 611 (1964), Justice O'Connell, in a specially concurring opinion, also called for a "re-appraisal of this insurance bugaboo."

[12] This follows from the adoption by the majority of the following test, as stated in Johnson v. Hansen, 237 Or. 1, 6, 389 P.2d 330, 332, 390 P.2d 611 (1964):

"* * * 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 majority also quotes from the dissenting opinion in DeSpain v. Bohlke, 92 Or.Adv.Sh. 1592, 1602, 486 P.2d 545, 550 (1971), in which it was stated that:

"The unnecessary injection of insurance be it intentional or inadvertent, is prejudicial and ground for a mistrial unless the court can point to some special circumstance negating the likelihood of prejudice."

The majority then says that "In the instant case it is not necessary to take the step urged by the dissenters." The effect of the rule approved by the majority, however, is that unless the "inference" of prejudice from the inadvertent mention of insurance is overcome by "any countering influences," the trial court may properly grant a mistrial.

[13] E.L. Jones Construction Co. v. Noland, 105 Ariz. 446, 466 P.2d 740 (1970) (quoting with approval from Muehlebach v. Mercer Mortuary Chapel, Inc., 93 Ariz. 60, 378 P.2d 741 (1963)); and Halstead v. Sanky, 48 Misc. 2d 586, 265 N.Y.S.2d 426 (Sup.Ct. 1965). See Cortesia Cadillac v. Willard A. Selle, Inc., 442 S.W.2d 925 (Tex.Civ.App. 1969); and Lyster v. Metzger, 68 Wash.2d 216, 412 P.2d 340, 344-345 (1966). See also Notes 7 Ga.St. B.J. 240, 247 (1970); Notes 16 Syracuse L.Rev. 92, 98-100 (1964); Notes 70 Dick.L.Rev. 64, 78-80 (1965); and cases cited in 4 A.L.R.2d, supra note 6, § 12 (1971 Supp.). For earlier cases see special concurring opinion by Justice O'Connell in Johnson v. Hansen, 237 Or. 1, 9, 389 P.2d 330, 390 P.2d 611 (1964).

[14] No such case has been cited by counsel and further research has revealed none.

[15] Oregon cases affirming the denial of a motion for new trial, or mistrial or to discharge the jury because of an inadvertent reference to insurance by a witness in response to a proper question include: DeSpain v. Bohlke, 92 Or.Adv. Sh. 1592, 486 P.2d 545 (1971); Blake v. Roy Webster Orchards, 249 Or. 348, 437 P.2d 757 (1968); Jones v. Imperial Garages, 174 Or. 49, 145 P.2d 469 (1944) (reversed on other grounds); Fogelsong v. Jarman, 168 Or. 177, 121 P.2d 924 (1942); Goodale v. Hathaway, 149 Or. 237, 39 P.2d 678 (1935); Willhite v. Freed, 137 Or. 1, 299 P. 691 (1931); Ziegler v. Alaska Portland Packers' Ass'n, 135 Or. 359, 296 P. 38 (1931); Wells v. Morrison et al, 121 Or. 604, 256 P. 641 (1927); Melcher v. Connell, 119 Or. 626, 250 P. 742 (1926); Coblentz v. Jaloff, 115 Or. 656, 239 P. 825 (1925); and Jones v. Sinsheimer, 107 Or. 491, 214 P. 375 (1923). See also Sherrick v. Landstrom, 229 Or. 415, 367 P.2d 432 (1961); Rundlett v. Director, 150 Or. 658, 47 P.2d 848 (1935); and Hoffman v. Broadway Hazelwood, 139 Or. 519, 10 P.2d 349, 11 P.2d 814 (1932).

The foregoing cases do not include either cases in which reference to insurance was held to be proper because relevant to some issue or for some other reason or cases in which reference to insurance was made by counsel, such as in the examination of prospective jurors. See also Annot., 4 A.L.R. 2d 761 (1949), and Evidence in Oregon Civil Trials §§ 1.32-1.35 (1967). The foregoing cases also do not include cases in which reference to insurance in questions to a witness was held to be intentional. Thus, in Ross v. Willamette Valley Transfer Co., 119 Or. 395, 248 P. 1088 (1926), the denial of a motion to strike was reversed for the intentional asking of an improper question by plaintiff's attorney. Similarly, in Guthrie v. Muller, 213 Or. 436, 325 P.2d 883 (1958), the granting of a new trial for the intentional injection of insurance was affirmed. Also, in Black v. Nelson, 246 Or. 161, 424 P.2d 251 (1967), in which plaintiff's witness was asked whether plaintiff had been paid by the insurance company, an improper question, the denial of a motion for mistrial was reversed.

[16] See cases cited in note 15.

[17] Defendant's expert witness stated only, in response to a proper question, that the vehicle had been shown to him by the "insurance adjuster," without stating whose insurance adjuster. There was no suggestion that the insurance adjuster had made any offer of settlement or had made any admissions of liability or that the amount of insurance was either adequate or inadequate to cover the amount of the claim.

[18] Cf. Yundt v. D & D Bowl, Inc., 92 Or.Adv.Sh. 1535, 486 P.2d 553 (1971).