Opinion
No. 3107.
Decided November 7, 1939.
A party obtaining a responsive answer to his question ordinarily waives objection by the very asking of it.
The incidental and unavoidable mention of the defendant's liability insurance in the course of a trial for negligence does not constitute incurable error as matter of law.
ACTION, for negligent operation of an automobile. Trial by jury and verdict for the defendant. The plaintiff's cross-examination of the defendant was in part as follows: "Q. What talk did you have with Mr. Swan? A. Very little. Q. I didn't ask how much, I asked what it was. A. He just asked if I had insurance and I told him no." The plaintiff thereupon moved for a mistrial and excepted to the denial of the motion. Transferred by Burque, C. J.
Arthur Olson, for the plaintiff, filed no brief.
Cain Goodnow, by brief, for the defendant.
"It is common learning that a party obtaining a responsive answer to a question asked by himself has waived objection by the very asking." 5 Wig. Ev., (1st ed.), 14. If the rule has any exceptions, the case here is not within them.
Furthermore, although evidence that a party is or is not insured against the liability for which he is sued is incompetent, yet "The fact of insurance may incidentally and unavoidably appear." Piechuck v. Magusiak, 82 N.H. 429, 431. The evidence therefore does not necessarily render the trial unfair. Emerson v. Cobb, 88 N.H. 199, 202. The plaintiff did not seek to have the evidence stricken out and the jury instructed to disregard it. If not estopped by eliciting the evidence, he cannot maintain that it constituted incurable error as matter of law.
Judgment on the verdict.