Avery Freight Lines, Inc. v. Stewart, 7 Div. 175

• Decision Date: 19 March 1953
• Docket Number: 7 Div. 175
• Citation: 63 So.2d 895,258 Ala. 524
• Parties: AVERY FREIGHT LINES, Inc. et al. v. STEWART.
• Court: Alabama Supreme Court

Page 895

63 So.2d 895

258 Ala. 524

AVERY FREIGHT LINES, Inc. et al. v. STEWART.

7 Div. 175.

Supreme Court of Alabama.

March 19, 1953.

Starnes & Holladay, Pell City, and Sadler & Sadler, Birmingham, for appellants.

Ramon Stewart, pro se., Embry & Embry, Pell City, and T. Eric Embry, Birmingham, for appellee.

PER CURIAM.

This is a suit in which appellee as administrator of the estate of Edsel H. Stewart recovered a judgment against appellants for $25,000 for causing the death of Edsel H. Stewart in the collision between a truck and car.

There are only three assignments of error. The first relates to an occurrence in connection with the qualification of prospective jurors. The trial judge had ascertained that Casualty Reciprocal Exchange was appellant Avery Freight Lines' liability insurance carrier by proceeding conducted out of the presence of the jury. He then propounded to the jury panel the following question: 'Are any of you stockholders or employees of the Casualty Reciprocal Exchange? And, for information of counsel only, gentlemen, do any of you have any relatives who work for that concern Casualty Reciprocal Exchange?' There was no affirmative answer from the panel. Defendants' counsel then stated: 'And we renew our motion.' The court: 'I overrule the motion.' Defendants' counsel: 'Same grounds, being required to strike from the panel----'. The court: 'Yes. He's got it in the record.' Defendants' counsel: 'All right. And we except.' The motion then renewed supposedly referred to a statement by defendants' counsel to the court that 'defendant objects to being put upon trial in this case, and being required to strike from the jury panel from which a jury is to be selected, in that the jurors were in the court room when the case was called for announcement of attorneys, and Mr. Eric Embry, one of the attorneys for the plaintiff, inquired of the jurors as to whether or not any member of the panel was stockholders (sic) or employees (sic) of the * * * Casualty Reciprocal Exchange.'

The assignment of error is that the 'court erred in propounding the question to the jury panel, 'and, for information of counsel only, gentlemen, do any of you have any relatives who work for that concern, Casualty Reciprocal Exchange,' to which action of the court the appellants objected and duly reserved an exception.' The record shows no objection to the quoted feature of the question propounded by the court to the jury panel. The renewal of the motion as shown by the record is not such an objection in terms or effect. The portion claimed in the assignment to be objectionable was a part of a question, a portion of which is not now claimed to be objectionable. The motion which was renewed was an objection to being put on trial, and to strike from the panel, not on account of what is now thought to be objectionable but presumably on account of the entire question of which it is a part. So that, the record does not sustain the assignment of error.

The contention which appellant makes, however, is that the quoted feature of the question was objectionable because it was not propounded by plaintiff's counsel or by the court at his request, but that it was the ex mero motu act of the court. We could not sustain that contention ever if it were properly raised.

The inquiry is conceded to be one available to plaintiff's counsel under section 52, Title 30 of the Code. Cox v. Bennett, 250 Ala. 698, 36 So.2d 86. Under the statute counsel are not confined in their inquiry to matters which disqualify a juror, but it extends to what is appropriate tending to show their interest or bias. Dyer v. State, 241 Ala. 679(2), 4 So.2d 311. The trial judge could refuse without error a request that he propound the inquiry, since it did not go to the disqualification of a juror, and section 52, supra, does not apply to the judge. Cox v. Roberts, 248 Ala. 372, 27 So.2d 617; Leach v. State, 245 Ala. 539, 18 So.2d 289.

The inquiry of the panel by the judge as to their relation to or interest in the insurance carrier of defendant was proper unless attended by undue prejudicial circumstances. Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So.2d 212; Fortson v. Hester, 252 Ala. 143, 39 So.2d 649. It is the imperative duty of the judge to ascertain whether the jurors are qualified. Leach v. State, supra; Section 6, Title 30, Code. But such duty ends there.

Considering those features of the law, we think it is in the discretion of the judge whether he will question the panel of jurors as to matters which tend to show interest or bias not amounting to disqualification, and that whether or not he is requested by counsel to do so. We cannot sustain appellants' contention in that respect.

Assignment No. 3.

Charge 17 refused to defendants is the basis of this assignment and is as follows:

'If, after a consideration of all the evidence, you should determine to award the plaintiff damages, you can not in estimating the amount, consider the pecuniary value of the life of Mr. Stewart but can only award damages by way of punishment to the defendant; and if the jury believe that damages in a small amount will be sufficient punishment for the act or acts of the defendant, it would be unjust to award damages in a large amount.'

The court gave charge 25 to the effect that compensatory damages were not recoverable. And in the oral charge the court instructed the jury that:

'* * * he would be entitled to recover what we know in law as punitive damages. That is, damages by way of punishment to the defendants, for the wrong you find from the evidence they committed as charged there in the complaint. Punitive damages.

'And the purpose of punishment, gentlemen, is two-fold. One, to punish the defendants for the wrong committed, if you find they did commit a wrong, of course. If you are reasonably satisfied from the evidence that they did commit the wrong as charged there in that complaint. And also to deter other people from committing like wrong. Punishment, and the deterring effect. In no event, of course, could it exceed the amount claimed in the complaint.'

Also in given charge 18 the court instructed the jury that the damages are by way of punishment of defendants. And in charge 16 that the damages are punitive and should be measured by the quality of the wrongful act and the degree of culpability involved. This last stated meaning of the principle has been approved. Jack Cole, Inc., v. Walker, 240 Ala. 683, 200 So. 768; Patrick v. Mitchell, 242 Ala. 414, 6 So.2d 889. But it is not the only or necessary way to express it. Many charges have been approved without it. Richmond & Danville R. R. Co. v. Freeman, 97 Ala. 289, 11 So. 800.

We think the principle of refused charge 17 was sufficiently covered in all its material parts.

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