Vasquez v. Pettit

Opinion by Mr. Chief Justice Moore. 1. No motion appears to have been made to strike from the reply the averment as to the defendant’s alleged representations with respect to the payment of the medical and hospital bills by an insurance company. It will be remembered that the answer states the defendant assumed the payment of these obligations. Whether or not he informed the plaintiff that an insurance company would advance or pay the money for that purpose is unimportant, for the source from which such debts were to have been paid was not the statement of any material fact, and it was unnecessary to move to strike the averment from the reply. 2. The plaintiff’s counsel in examining prospective jurors on their voir dire was premitted, over objection and exception, to state that the damages which their client had suffered,were to be paid by money furnished by an insurance company and each person, when he entered the jury-box, was asked if he was acquainted with the agents in Portland, Oregon, of such company. The defendant, as a witness in his own behalf, testified that he had paid the plaintiff, as wages, from May 1, 1911, the time he was hurt, to July 22d [500] of that year, when he resumed work, $135; that as a compromise and settlement of the damages which had been suffered he had give him $400; and for his surgical operation, medical attention, hospital dues, etc., he had paid $268.85, making $803.85. On cross-examination the defendant was compelled, over objection and exception, to state that such sum had been repaid him by an insurance company under a policy which protected his business against liability for a.ccidents to employees. It is contended that errors were committed in these particulars. In the trial of this cause there appears to have been an intent at every convenient opportunity to establish the fact that the defendant was protected from liability to respond in damages for injuries to his employees by a policy of indemnity insurance. As such proof, in personal injury cases, might have a tendency to render the jurors careless as to the amount of their verdict, the rule is universal that a willful attempt to establish such fact constitutes reversible error: Tuohy v. Columbia Steel Co., 61 Or. 527 (122 Pac. 36); Putnam v. Pacific Monthly Co., 68 Or. 36 (130 Pac. 986, 136 Pac. 835, Ann. Cas. 1915C, 256, 45 L. R. A. (N. S.) 338); Cameron v. Pacific Lime & Gypsum Co., 73 Or. 510 (144 Pac. 446). The purpose in introducing the testimony complained of comes within the specification named, and, an error having been committed as alleged, it follows that the judgment must be reversed. 3, 4. In view of the conclusion thus reached, it is deemed important to consider another feature of the case. The testimony of the plaintiff, as given by an interpreter, is to the effect that he had been employed by the defendant several years and placed implicit confidence in all declarations that he made; that after [501] the injury the defendant promised to give him employment in the factory as long as he continued to operate it; and that, relying upon such promises, he signed the writing supposing it was a receipt for the money and to show the insurance company what sum he had received. Julius Gonzales, the plaintiff’s brother-in-law, interpreting his answer to the question, “There was something said about a job, too, when he signed it, wasn’t there?” replied: “He said that after he signed that paper, why, he told Mr. Pettit he wanted a recommendation for a life job, and Mr. Pettit said, ‘No, I will give him a job that will last him for fifteen years for all he knows, or as long as he remained in the business.’ ” This action was commenced May 1, 1913, just two years after the injury, and during most of the interim the plaintiff continued in the defendant’s employ. It will be kept in mind that the reply avers that the defendant, disregarding his promise, discharged the plaintiff and refused longer to employ him. This allegation is deemed to be controverted by the defendant as upon a direct denial: Section 95, L. O. L. At the trial herein the defendant’s counsel did not concede that the alleged promise to employ the plaintiff was ever made, or that the service which he rendered after the injury formed any part of the consideration for the execution of the release. In this state of the case it would be improper summarily to dismiss this action and to hold that for a failure of a part of the consideration the plaintiff’s proper remedy was an action to recover damages for a breach of the agreement, and to turn him out of court because the money which he received had not been returned or offered to be repaid before this action was commenced. [502] The cause will therefore be remanded in order to form new issues or for a trial upon the pleadings already filed as the parties and the court may determine. Reversed. Mr. Justice McBride and Mr. Justice Benson concur. Mr. Justice Burnett concurring in the result.