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Badillo v. Mid Century Insurance Co.6/21/2005
cated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected[.]" Title 12 O. S. 2001, § 78 states, " he court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect."
A judgment is not subject to reversal for error in the rejection of evidence unless it appears from review of the whole record that the "error has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." Samara v. State ex rel. Oklahoma Capitol Improvement Authority, 1964 OK 79, 398 P.2d 89, 90 (Third Syllabus by the Court), appeal dismissed and cert. denied, 381 U.S. 354 (1965); see also Bates v. Utech, 1967 OK 256, 441 P.2d 952, 953 (Second Syllabus by the Court). In other words, not every erroneous exclusion of evidence is deemed reversible error; instead, some errors are deemed harmless. When it is probable a verdict would have been unchanged even had the rejected evidence been admitted, this Court is not warranted in reversing the cause based on the erroneous exclusion. See Layton v. Purcell, 1954 OK 38, 267 P.2d 547, 554 (to be reversible complaining party must show alleged errors were prejudicial and it must appear verdict and judgment would probably have been different had errors not occurred); 2 LEO H. WHINERY, OKLAHOMA EVIDENCE, COMMENTARY ON THE LAW OF EVIDENCE 239-242, § 11.15 (2nd ed. 2000). In our view, insurers have not shown reversible error as to the exclusion of evidence concerning Smith's capacity or lack thereof that would warrant remand for a new trial.
In essence, insurers are trying to take advantage of the rule that provides a contract entered by a person lacking capacity is avoidable and subject to rescission. As noted in PART III(B), the basic purpose of the rule a contract may be avoided by reason of incapacity of one of the makers thereof is for protection of the incompetent. See Davidson v. National Aid Life Ass'n, 1935 OK 922, 50 P.2d 173, 175. Had a settlement for the $10,000.00 policy limits been reached with Young on Smith's behalf, or some type of tentative settlement agreement been entered which might have been subject to being later approved or ratified by Smith, or that might have been subject to court approval if that was deemed necessary in view of her condition, it was Smith who would have been in the position to complain by attempting to rescind or avoid any said settlement. It seems to us bordering on the nonsensical to conclude either insurers or insured would have been in a position to complain about it and claim harm thereby, particularly in light of the serious nature of the injuries to Smith, the extensive medical bills she had incurred, and insurers' early evaluation that insured's liability was likely. Thus, even had it been conclusively shown that Smith was incapacitated during relevant time periods this would not have doomed any settlement reached on her behalf prior to April 17th, nor would it have provided insurers the absolute defense they seek on causation.
Further, our review of the trial record shows insurers were allowed to present extensively for the jury's consideration their set-up defense in an attempt to show the lawyers hired by Young never really had an intention to settle or recommend settlement within the $10,000.00 policy limits. Evidence was allowed as to whether it was refusal to produce insured for a statement that caused the opportunity for settlement within the policy limits to be lost or, instead, whether it was a set-up by the Young/Smith attorneys t
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