Wilson v. Blair

MR. COMMISSIONER LEIPER

prepared the opinion for the court.

Plaintiff’s (respondent herein) second amended complaint sets forth two causes of action. Prior to the selection of the jury, counsel for defendant (appellant herein) moved the court that the plaintiff be required to elect upon which of the causes of action plaintiff would rely. This motion was granted, and plaintiff elected to stand upon the second cause of action. It is alleged therein that the defendant is a physician and surgeon, duly licensed to practice as such and practicing at Bozeman, Montana; that the plaintiff is a jeweler, skilled in repairing watches, doing engraving work and manufacturing jewelry; that in June, 1919, plaintiff sustained an injury to the thumb of his left hand, which rendered the first joint thereof stiff; that thereafter plaintiff consulted with defendant concerning such injury, and for a valuable consideration to be paid defendant by plaintiff, defendant agreed to. perform a surgical operation upon the said thumb and guaranteed that after such operation plaintiff’s said hand would be 100 per cent efficient; that such operation was performed, which resulted in further injury to the thumb and such injury to the whole hand as that plaintiff is unable to perform his usual work or to follow his vocation. Plaintiff prays damages in the sum of $15,000.

The answer admits that defendant is a physician and surgeon; that plaintiff sustained injury to the thumb of his left hand in June, 1919; admits that defendant was employed to perform a surgical operation on such thumb; that said operation was performed, and denies all of the other material allegations of the complaint.

The cause was tried to a jury. At the conclusion of the testimony for plaintiff, defendant moved for a nonsuit, which motion was denied. Thereafter defendant offered testimony. The jury returned a verdict for the plaintiff in the sum of $5,000, and judgment was entered thereon. Defendant thereafter moved the court for a new trial, which was overruled. These appeals are from the judgment and from the order overruling defendant’s motion for a new trial.

Under specifications of error numbered 1, 2, 4 and 5, the contention is made that the evidence is not sufficient to support the verdict; that the court erred in denying defendant’s motion for a nonsuit, and in denying defendant’s motion for a new trial; and that the verdict of the jury is against the law.

We will consider these four specifications of error together. In this action the plaintiff is relying upon a special contract alleged to have been entered into with defendant. The plaintiff asserts that under the terms of this contract the defendant agreed to perform an operation on plaintiff’s left hand and warranted and guaranteed that the said hand would, as a result of such operation, be cured of all defects and made 100 per cent efficient. To prevail the plaintiff must prove that there was an agreement enforceable at law, that defendant violated such agreement, and that damage resulted. It is admitted that an agreement was made to perform an operation and that such operation was performed, but it is specifically denied that there was any agreement either warranting or guaranteeing the result of such operation.

The jury were instructed, in part, as follows: “The contract to cure counted upon in the complaint is a special contract which, by its terms, devolved upon the defendant a greater liability, responsibility, and duty than that devolved upon him by the law. To render it valid, there must have been a consideration for the contract, and without such consideration it was a mere gratuitous promise, upon which the plaintiff could not recover.

“So if you find from the evidence that after plaintiff and defendant had agreed that defendant should perform the operation in question and what his compensation for the performance of the operation and subsequent .treatment should be, defendant without other consideration passing to him, or paid or promised to him, stated that the result of the operation would be to make plaintiff’s hand 100 per cent efficient, and that he would so guarantee, or words to that effect, such promise and dependence upon it was without consideration and cannot be enforced here, and your verdict should be for the defendant.

“You are instructed that if you find and believe from the evidence that the plaintiff promised to pay the defendant any sum of money in consideration of the defendant guaranteeing a cure, or a hand that would be 100 per cent efficient as a result of the operation, that such promise to pay is a good and valuable consideration, even though the said promise was not carried out by the plaintiff.”

No objection was made to the giving of these instructions, and they became the law of the case. (Daniels v. Granite Bi-Metallic Co., 56 Mont. 284, 184 Pac. 836; 14 R. C. L. 822; Schmidt v. Carpenter, 27 S. D. 412, Ann. Cas. 1913D, 296 and note, 131 N. W. 723.)

In order to clearly understand the nature of the transactions between the plaintiff and defendant, it becomes necessary to recapitulate a part of the testimony had upon the trial hereof. As hereinbefore noted, the defendant offered testimony; but this did not in anywise strengthen the plaintiff’s ease. The defendant denies emphatically that any agreement was made between plaintiff and defendant, except that defendant was to perform the operation on plaintiff’s left hand, and plaintiff was to pay not less than $25 nor more than $50 therefor. The plaintiff himself and one Ginn, who is an uncle of plaintiff, were the only witnesses who gave testimony in plaintiff’s behalf. From plaintiff’s testimony it appears that he follows the trade or vocation of a watchmaker and engraver; that in the latter part of June, 1919, the plaintiff, while engaged in doing engraving work, sustained an injury to the thumb of his left hand, whereby the tendons thereof were severed, as a result of which the first joint of the thumb became stiff, and the plaintiff was thereby rendered less capable of performing the work required of him in his vocation. It further appears that about six weeks after sustaining this injury, plaintiff met defendant in defendant’s garage, where the conversation occurred between plaintiff and defendant out of. which the alleged agreement upon which this action is based grew. Plaintiff testified that he showed his thumb to defendant, at the same time telling defendant of the accident which had befallen him, and asked defendant what was wrong with the thumb; that defendant replied that the tendons had been severed; that it could be fixed by a very simple operation, explaining at the same time the general nature of the operation. Plaintiff then suggested that the operation be performed without administering an anesthetic, but defendant advised against the performance of the operation without first administering an anesthetic.

Continuing on direct examination, the plaintiff testified: “I asked him if he was sure that that operation, as he described it to me, would make my hand as good as it ever was. And he said, ‘Yes,’ he says, ‘I’ll guarantee that your hand will be in—first he guaranteed it to me three different times. The first guaranty was, ‘Yes, I’ll guarantee your hand will be a hundred per cent efficient,’ and I told him of course— Q. What did he say when he said he’d guarantee it to be a hundred per cent efficient? A. He said that it would be -as good as it was before I had the tendon cut. Q. I understand, but what words did he use that led you to believe that he guaranteed it? A. Well, he said those words. Q. Said what words? A. He said, ‘I’ll guarantee that your hand will be a hundred per cent efficient after the operation.’ Q. Following the operation which he proposed? A. Yes, sir. Q. Did you make a ay promise to the doctor, at the time he said he would guarantee it to be a hundred per cent efficient at the time of the operation, about paying him for such work? A. Well, I inquired how much the charge for that operation would be, and he said he thought it would be about $25. But he said he would state it would be between $25 and $50. That is, outside of the hospital bill. Q. Did you promise to pay that? A. Yes, sir; I did. Q. That is when he guaranteed to make your hand 100 per cent efficient, you promised to pay him whatever his charges were? A. Yes, sir; I did. Q. Now, did you believe that Dr. Blair when he said that he could make your hand a hundred per cent efficient by this operation? A. Yes, sir; I did, or I never would have had the operation. Q. Did you act and rely upon what the doctor said when he said he’d guarantee a cure of the hand by permitting him to operate? A. Yes, sir; I did. Q. Would you have had the operation performed had you not believed, acted, and relied upon what the doctor told you with reference to this operation ? A. No, sir; I would not, absolutely not. Q. Well, you told the court and jury a few moments ago that the doctor guaranteed this two or three different times? A. Yes, sir.”

The plaintiff on his direct examination then detailed what was done in performing the operation, its results, and the damage which followed. On cross-examination, the plaintiff testified, in part, as follows: “I first said something about what it would cost to have the operation. I asked him about how much it would cost me to have it done, and he said that it would cost me about $25. Well, he said he thought it would cost me between $25 or $50. He said it would not be more than $50. The way he came to say that he would guarantee that my hand, after he got through with it, would be 100 per cent efficient, was I asked Mm if he was sure that that would make it so it would be as good as it ever was. He said, ‘Yes.’ He says, ‘I will guarantee that your hand will be 100 per cent efficient.’ Q. When he was talking about the results of this operation, he did not say that he thought the operation would ¿>e satisfactory and would make your hand substantially as good as it was, but he guaranteed that it would be just as good as though the tendon was never cut? A. There wasn’t any thinking about it; he guaranteed it absolutely. Q. He positively guaranteed it? A. Yes, sir; absolutely. Q. Did he say to you that he was making that guaranty in consideration of this $25 or $50 you agreed to pay him? A. Well, I—I promised him that I would pay him, and I know, I feel confident, that he believed and knew that I would pay him, or he would not have undertaken to operate on it. Q. You think he would not have guaranteed the results if it had not been for your promise to pay him? A. No, I do not. I do not believe he’d ever touched it. Q. What was there that was said between you that makes you think and say that? A. Well, of course, I really haven’t any ground to say that he wouldn’t have touched it if I hadn’t agreed to pay him. But I already agreed to pay him—(interruption). Q. Well, now, did you agree to pay him before he guaranteed the results or afterwards? A. Well, he guaranteed the results before I ever considered letting him operate on it. Q. He guaranteed the results before you made even any promise to pay him? A. Because I told Mm beforehand that if it would not make it as good as ever I would not think of letting him touch it at all. Q. And he in response to that, he told you you need not worry; he’d guarantee it would be as good as it ever was? A. Well, he did not word it just that way. Q. Well, just how did he word it then? A. Well, he came out and gave his assurances and guaranteed it three different times, during our speaking. The way he happened to make the first guaranty was I asked him if he was sure that my hand would be as good as it ever was, or if he would advise me—when he had guaranteed it to me the first time I asked him— Q. What was it that you asked him? A. Why, when I asked him if he was sure that that would be—it would be as good as it ever was after he got through— he says, ‘Yes,’ he says, ‘I will guarantee that your hand will be a hundred per cent efficient.’ Those are the very words he used. Q. Now, that was before any arrangements were made at all; that was just a talk; the first proposition was, his first guaranty came that way, before any arrangement had been made—is that right? A. Well, yes. I asked him if I would have it done, if my hand would be as good as it ever was, and that was just the way that came about. Q. And he answered he would guarantee that it would be a hundred per cent efficient? A. He did. In response to that, I asked him how much it would cost me to have it done, and he said it would be from $25 to $50. Q. Now, then, what was said? Go on and tell us what was said after this first guaranty, and that led up to the second one. A. Well, I remember I asked him the second time if he was—well, I asked him if he would feel sure that it would not—I told him that if it would make my hand any worse, I would not have it done. I would not want to have it done at all, because I could work the way it was, and I would not want to get it in a condition where I could not use it and he said— Q. This was after the first guaranty that you told him that? A. Yes, sir. Q. Go on. A. And he went on and said that my hand would be as good as it ever was. Q. Did he say that he’d guarantee it, or did he say that it would be as good as it ever was? A. Well, he said it would be as good as it ever was, which I would think would be as good as a guaranty. Q. He did not use the word ‘guaranty’ the second time? A. No, he did not. Q. Hold on now, let’s not get away from the garage. That third guaranty, I want to know about that. A. I do not know whether I can state right now just the words he used. I know that he gave me the assurance— Q. No, I want to know what was said on that third guaranty and how it came about; after we have had two, now here comes this third one. A. Which he did. He assured me three times. Q. That is what I want to find out. Wha't did he say the last time? Now, the second guaranty he did not say it was a guaranty; he just simply said it would be as good as it ever was? A. Yes, sir. Q. Now, then, how about this third time; what was the language he used on the third alleged guaranty? A. I really cannot recall what was said the third time.”

At this point in the cross-examination, court adjourned for the day, and upon the reconvening of court on the morning of the following day the plaintiff, on cross-examination, testified further: “Q. I’m asking you if you can give us the language of the third guaranty. A. Well, having thought the matter over, Dr. Blair made his guaranty—after my first conversation, after I had agreed to pay him either the $25 or $50, how much it—what his fee would amount to—he guaranteed that my hand would be 100 per cent efficient. Q. Will you kindly give us the language that Dr. Blair used and the circumstances under which he used it at the making of the third guaranty. Yesterday you gave us the language and facts with reference to the first and second; now, please give us the language and circumstances surrounding the third guaranty. A. Well, I. wish to state that I admit you kind of got me mixed up yesterday, and the only guaranty Dr. Blair made was after I had agreed to pay him; then he guaranteed that my hand would be a hundred per cent efficient after he’d performed the operation. Q. Now, having thought it over and found out where you’re at, what was the language and circumstances of this guaranty that you’re telling us about now? A. When I showed him my hand and described the nature of my case and I had asked him whether it could be fixed or not, he said it would be a very simple operation. Then I asked him how much it would cost to have it done, and he told me that it would be $25, but he was sure it would not be more than $50, and so I agreed to pay him that bill. Then I asked him if he was sure it would make it all right. He says, ‘Yes, I’ll guarantee that your hand will be 100 per cent efficient after the operation.’ That is the identical words he used. Q. That is the way it happened now? A. Exactly; yes, sir. Q. So after the price was agreed upon, then you inquired whether or not the operation would be successful? A. Well, not exactly—yes, it would amount to that. Q. He said it would cure all defects, did he? A. He said my hand would he 100 per cent efficient; those are the words used. Q. Now, I am asking you whether Dr. Blair •used that language at the time he made this contract. A. Well after -he had made the guaranty and we had talked—we talked quite a little while there before I left. Q. Now could not you answer that question, whether—I asked you whether Dr. Blair used that particular language at the time he made this contract? A. To be frank about it, I do not—I would not say positively just what he did say, or just whether he used those very words or not. But he made the affirmative several times that my hand would be as good as it ever was. Q. Well, I say this guaranty that you’ve been talking about, that Dr. Blair made, is made up of the construction which you put upon the things that Dr. Blair said? A. No, sir; he come right out and said, ‘I’ll guarantee that your hand— after I’d promised to pay the amount, he come out and said that ‘I’ll guarantee your hand will be a hundred per cent efficient.’ Q. Did he make that promise because you had promised to pay him $25 for the operation? A. I imagine, he did. He didn’t make that guaranty until after I’d promised to pay. Q. He did not make the guaranty until after you’d promised to pay? A. No, sir. Q. Now, this from $25 to $50 that you were to pay him was for the operation that he was to perform? A. Entirely; yes, sir. Q. Entirely so? A. Yes, sir. Q. And what were you to pay for the guaranty? A. Well, he came out and voluntarily made that guaranty after I’d promised to pay him the money. Q. He made the guaranty voluntarily? A. Yes, sir; he did. Q. You were not agreeing to pay anything for that? A. No; no, I did not. .Q. I say, you were not to pay anything for it? A. I was paying for the operation. Q. Yes, you yere paying for the operation. A. Yes, and after I’d promised to pay him, he guaranteed the operation, so of course I imagine his guaranty would work in.”

There is other testimony by the plaintiff, but the foregoing is substantially all of plaintiff’s testimony which bears upon this phase of the matter. Witness Ginn testified: That he was present at the time of the conversation covered by plaintiff’s testimony; that the defendant said that it was a simple operation; that Mr. Wilson asked him when he showed him this, and asked him about operating on it, and he asked him about what an operation like that would cost, and he said from $25 to $50. Then Mr. Wilson asked him if he thought he could guarantee him a good job, a hundred per cent job. Tie said, “Yes, you can use it just the same as you did before i't was hurt,” after this cord, was sewed up. “Q. Now, will you answer the .question, Mr. Ginn: Did the doctor at that time say anything else about guaranteeing a hundred per cent efficient hand? A. Why, after Mr. Wilson told him about when he’d pay him, he told him he’d guarantee him a hundred per cent job of it. Then Wilson asked what it would cost, and the doctor said it would cost him from $25 to $50, which would cover his fees for the operation. For all I knew, Dr. Blair only agreed that the $25 or $50 was to be for operating on his hand—putting it so that he could use it again. Q. Was it your understanding that Dr. Blair was to be paid from $25 to $50 for all the services he was to perform? A. To put the thumb in perfect shape. Q. Did you hear Dr. Blair use the word ‘guaranty’ in connection with perfecting a cure? A] Yes, sir; he guaranteed a first-class job. Q. You heard that word used by the doctor? A. Yes, sir. Q. What was the ’ language that the doctor used, just what was said, and how did he happen to say it? A. What? Q. You say he guaranteed it to be a first-class job; what was the language he used? A. What was the language? Q. Yes, what did Dr. Blair say, and how did he happen to say it from which you say he guaranteed it to be a first-class job? A. When he asked him about the $25 or $50, Ralph wanted to know if he could do him a hundred per cent job, and the doctor said he could; a very simple operation.”

The question presented is: Was there an agreement between plaintiff and defendant, enforceable at law, by which the latter guaranteed and warranted that as a result of such operation the plaintiff’s hand would be cured of all defects and rendered 100 per cent efficients If the contract in question was merely that, defendant was to perform a surgical operation, then the law requires that defendant possess the skill and learning which are possessed by the average member of the medical profession in good standing in the community in which he resides, and to apply that skill and learning with ordinary and reasonable care. He does not become a guarantor of the results of such operation. (Loudon v. Scott, 58 Mont. 645, 12 A. L. R. 1487, 194 Pac. 488; Hansen v. Pock, 57 Mont. 51, 187 Pac. 282; MacKenzie v. Carman, 103 App. Div. 246, 92 N. Y. Supp. 1063.)

It is plaintiff’s contention, however, that the defendant entered into a special contract with plaintiff, under the terms of which the defendant increased his responsibility by guaranteeing the results of the operation to be performed. In order that such special contract be valid, or to make it enforceable at law, it must be supported by a consideration. “The rule that consideration is essential to the enforcement of a simple contract is so thoroughly settled that it may be regarded as one of the elementary principles of the law of contracts.” (6 R. C. L. 650.) The trial court very aptly stated this rule in the instructions given to the jury and hereinbefore noted. Our statute defines “consideration” as follows: “Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.” (Sec. 7503, Rev. Codes 1921.) The consideration must be either present or future, but it must not be past. “The rule that a past consideration will not support a subsequent promise is only another mode of saying that every promise, whether express or implied, must, in order to be binding, be made in contemplation of a present or future benefit to the promisor.” (Anson on Contracts, 115; 9 Cyc. 358; 13 C. J. 359.)

The record discloses that upon the day of the trial of this cause, plaintiff on direct examination testified that defendant had guaranteed the results of this operation three different times. Upon cross-examination on the same day, the plaintiff stated the language used by the defendant in the first and second guaranties, and was asked by defendant’s counsel the language used by the defendant in making the third guaranty, but stated that he could not recall it at that time. At this point in the cross-examination, the court recessed for the day. Upon court reconvening on the following day, the second question asked the plaintiff was, “I am asking you if you can give us the language of the third guaranty?” to which the plaintiff made answer: “Well, having thought the matter over, Dr. Blair made his guaranty—after my first conversation, after I had agreed to pay him either the $25 or $50, how much it—what his fee would amount to—he guaranteed that my hand.would be 100 per cent efficient.”

The third question asked was: ‘ ‘ Will you kindly give us the language that Dr. Blair used and the circumstances under which he used it at the making of the third guaranty? Yesterday you gave us the language and facts with reference to the first and second; now, please give us the language and circumstances surrounding the third guaranty,” to which plaintiff replied: “Well, I wish to state that I admit you kind of got me mixed up yesterday, and the only guaranty Dr. Blair made was after I had agreed to pay him; then he guaranteed that my hand would be a hundred per cent efficient after he’d performed the operation.”

The next question asked was, “Now, having thought it over and found out where you’re at, what was the language and circumstances of this guaranty that you’re telling us about now?” to which reply was made: “When I showed him my hand and described the nature of my case and I had asked him whether it could be fixed or not, he said it would be a very simple operation. Then I asked him how much it would cost to have it done, and he told me that it would be $25, he didn’t think it would be more than $25, but he was sure it would not be more than $50. He said it would be between those two fees, outside of the hospital bill, and so I agreed to pay him that bill, which was satisfactory, and he agreed to wait thirty days or a little longer, if necessary. It was perfectly agreeable to him. Then I asked him if he was sure it would make it all right. He says, ‘Yes, I’ll guarantee that your hand will be 100 per cent efficient after the operation.’ ” The question and answer following this is-. “Q. That is the way it happened now? A. Exactly; yes, .sir.”

Immediately following this testimony, the plaintiff, at least eight different times, stated positively that the guaranty was given after he had promised to pay for the operation.

It is argued by plaintiff’s counsel that the plaintiff became confused and was misled by the cross-examiner. A careful examination of the record does not warrant this conclusion. This testimony was given after mature deliberation. The record is replete with instances which do not have a tendency to substantiate the contention of plaintiff’s counsel that plaintiff was misled, but rather the contrary is true. There is no other testimony which aids that of the plaintiff in this particular.' What, then, was the consideration for the guaranty? What was the benefit to be received by the defendant for the warranty? The only consideration or benefit for this whole transaction, passing from plaintiff to defendant, was the fee of from $25 to $50, and plaintiff says that this fee was for the operation. He says that he agreed to pay this to defendant, and afterwards defendant warranted or guaranteed the results of the operation. That which defendant agreed to do, in consideration of the promise' to pay $25 to $50, was to perform the operation, and the thing that plaintiff agreed to do was to pay defendant not less than $25 nor more than $50. Afterwards] plaintiff says the guaranty was made. Neither can it be maintained that the guaranty ivas made as an inducement to the contract to operate, for the guaranty was made subsequent to the agreement to pay for the operation. What is said by this court, speaking through Mr. Justice Holloway in the ease of Casey v. Northern Pacific Ry. Co., 60 Mont. 56, 198 Pac. 141, is applicable here, as follows: “It cannot be unfair to this plaintiff to deal with his case from the standpoint of his own statements. A party testifying in his own behalf has no right to be deliberately self-contradictory, and whenever he is so the courts are justified in judging his ease from that version of his testimony which is least favorable to him.”

Again it is said: “It surely can never be unfair to a party laboring under no mental infirmity to deal with his case from the standpoint of his own testimony as a witness. Where a party calls witnesses who conflict with each other in their sworn statements, he is not to be held responsible for the contradictions among them, for it is not within his power to prevent their occurrence; and a reviewing court will generally give to a party the benefit of the most favorable version of such testimony as a whole which the jury would be authorized to accept. But a party testifying in his own favor has no right to be intentionally or deliberately self-contradictory; and, if he is so, the courts are fully justified in taking against him that version of his' testimony which is most unfavorable to him. Being peculiarly in a position to state fairly and definitely the facts which he professes to know, he is under a duty of so stating them as to give ¡a candid and intelligible account of what occurred. The courts are also authorized to give great weight to statements unwillingly made upon cross-examination, when these statements have every appearance of being the real truth, though, reluctantly told.” (Western & A. R. Co. v. Evans, 96 Ga. 481, 23 S. E. 494.)

The supreme court of Georgia says: “If a person testify in his own behalf, and there are material conflicts and contradictions in his testimony, he is not entitled to recover if he be the plaintiff, unless that portion of his testimony which is least favorable to his contention is of such a character as to authorize a recovery in his behalf. The rule just referred to was first laid down in the case of Western & Atlantic R. Co. v. Evans, 96 Ga. 481, 23 S. E. 494. It was recognized and approved in Freyermuth v. Railroad Co., 107 Ga. 32, 32 S. E. 668, and Southern Bank v. Goette, 108 Ga. 796 (2), 33 S. E. 974.” (Atlanta Ry. & Power Co. v. Owens, 119 Ga. 833, 47 S. E. 213.)

From the foregoing it is apparent that the warranty was made after the agreement to operate and to pay therefor, that the warranty did not become a part of the contract to operate, and that there was no consideration for the warranty. We are of the opinion that the trial court erred in denying defendant’s motion for a nonsuit, that the verdict is against the law, and that the motion for a new trial ought to have been granted.

Error is predicated upon the action of counsel for plaintiff by reason of the following occurrences at the trial below, viz.:

(a) Before the impaneling of the jury to try this cause, but in the presence of the jury composed of the whole panel, defendant moved the court for an order requiring the plaintiff to elect whether he would proceed to trial upon his action for damages ex delicto, as stated in the first cause of action, or upon his action ex contractu, as set forth in the second cause of action. During the argument of this motion, and in the presence of the whole jury panel, counsel for plaintiff said, in part: “May it please the court, we realize, of course, that several demurrers have been filed in this action, but bonding companies defending physicians usually take advantage of everything that they can possibly take advantage of to—” Objection to this statement was made, but the court made no ruling. The motion requiring plaintiff to elect was granted.

(b) In the course of the cross-examination of the defendant, counsel for plaintiff asked defendant the following questions: (1) “Are you, or is the Medical Protective Association, the defendant in this case?” (2) “Under your contract with them, would you personally, or would they have to, pay any judgment secured against you?” Objection was made and sustained to both of these questions. Counsel for defendant moved the court to direct counsel for plaintiff to desist from asking further questions of like character, but no such direction was made.

(c) During the argument to the jury, counsel for plaintiff made the following statement: “Of course, he did not care anything about it; it was not any affair of his; he was insured in an insurance company; they had to pay these damages.” To these remarks of plaintiff’s counsel defendant’s counsel duly excepted and requested the court to instruct the jury to disregard the same in its deliberations. The court made no response to such request.

The obvious purpose of these statements and questions was to get before the jury such matter as that the jury might infer therefrom that some bonding company, and not the defendant, would be called upon to bear the burden of meeting any judgment rendered in this cause. Clearly none of such matter was admissible and is without the issues. Such practice is not to be commended. Having determined that this cause must be reversed and remanded upon other grounds, we do not deem it necessary to now determine whether or not the action of counsel complained of constitutes, in itself, reversible error. .

We recommend that the judgment and order appealed from be reversed and the cause remanded to the district court, with directions to set aside the verdict and judgment for plaintiff, and to enter judgment for defendant.-

Per Curiam :■ For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed and the cause is remanded to the district court, with directions to set aside the verdict and judgment for plaintiff, and to enter judgment for the defendant.

Reversed.