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Rigelman v. Gilligan

February 23, 1973

RIGELMAN, APPELLANT,
v.
GILLIGAN, RESPONDENT



Appeal from Circuit Court, Multnomah County. Alan F. Davis, Judge.

James H. Clarke, Portland, argued the cause for appellant. With him on the brief were McColloch, Dezendorf, Spears & Lubersky, Robert E. Maloney, Jr., and Richard H. Williams, Portland.

Cleveland C. Cory, Portland, argued the cause for respondent. With him on the brief were Davies, Biggs, Strayer, Stoel & Boley and Clarence R. Wicks, Portland.

Tongue, Justice. O'Connell, Chief Justice, and Denecke, Holman, Howell and Bryson, Justices.

Tongue

This is an action for personal injuries received in an automobile accident. Plaintiff was a passenger in an automobile which collided at an intersection with an automobile being driven by defendant. The jury returned a verdict in favor of defendant. Plaintiff appeals from the resulting judgment. We affirm.

Plaintiff's only assignments of error are that the trial court erred in denying the request of plaintiff's attorney, upon commencing the cross-examination of defendant, that his attorney produce copies of statements given by the defendant for use in cross-examination.

In support of these assignments plaintiff contends that in Pacific N.W. Bell v. Century Home, 261 Or 333, 491 P2d 1023, 494 P2d 884 (1972), we held that after an adverse witness has testified in a civil action, the opposing counsel, in order to effectively cross-examine, may be entitled to see and use previous statements of the witness (339) and that the "work product" rule does not protect statements from production at trial (Id. at 340). Plaintiff also contends that this rule has particular application when the witness is a party, as in this case, because prior inconsistent statements of a party may not only be used to impeach the credibility of his testimony as a witness, but as admissions by a party.

In addition, plaintiff contends that upon subsequent examination of the statement given by defendant in this case to an insurance adjuster the day after

the accident it is "clear that it contradicted defendant's testimony in material respects," with the result that the ruling of the trial court was not only erroneous, but prejudicial, and deprived plaintiff of a fair trial.

In response, defendant contends that the trial court acted properly in refusing to compel defendant's attorney to produce the statement, which consisted of transcription of a telephone conversation between defendant and a Mr. Messmer, who was an insurance adjuster, for the reason that even though the statement did not disclose that Mr. Messmer was an insurance adjuster, his identity as such "would have become known to the jury in one way or another." Thus, defendant contends that the trial court acted within its sound discretion to exclude reference to the existence of liability insurance within the rule of Blake v. Webster Orchards, 249 Or 348, 437 P2d 757 (1968), and Garber v. Martin, 261 Or 410, 494 P2d 858 (1972).

Defendant also contends that Pacific N.W. Bell v. Century Home, supra, is not in point because it "did not involve the possible prejudicial injection of insurance" and because in that case the witness had previously referred to the existence of such a statement. In addition, defendant contends that a comparison of the contents of the statement with defendant's testimony shows that plaintiff was not prejudiced because there were no significant inconsistencies.

1. The trial court erred in denying plaintiff's request for previous statements by defendant for use in cross-examination.

In considering whether the trial court erred in denying plaintiff's request for previous statements by

defendant for use in cross-examination, reference must be made to the transcript of the trial proceedings. The following appears from the record at the conclusion of defendant's testimony on direct examination:

"MR. MALONEY: Your Honor, I request Mr. Wicks provide me with all copies of statements he has from the witness before I cross-examine.

"THE COURT: I deny --

"MR. MALONEY: That is the Pacific Northwest Bell case, your Honor.

"THE COURT: I will deny it."

The following also appears from that record when plaintiff subsequently undertook to make an offer of proof outside the presence of the jury:

"THE COURT: * * * Put your matter [offer?] of proof on.

"MR. MALONEY: If Mr. Wicks would simply stipulate there are statements obtained from Mr. Gilligan concerning the accident that he has possession of I wouldn't need to make --

"MR. WICKS: I will stipulate that we took a recorded telephone --

"* * *

"MR. WICKS: A statement was taken from you by telephone right ...


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