Balle v. Smith

• Decision Date: 15 December 1932
• Docket Number: 5186
• Citation: 17 P.2d 224,81 Utah 179
• Court: Utah Supreme Court
• Parties: BALLE v. SMITH

17 P.2d 224

81 Utah 179

BALLE v. SMITH

No. 5186

Supreme Court of Utah

December 15, 1932

[Copyrighted Material Omitted]

Appeal from District Court, Second District, Weber County; Geo. S Barker, Judge.

Action by Verna Balle, a minor, by J. H. Balle, her guardian against R. E. Smith. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

JUDGMENT REVERSED, and a new trial granted.

Ralph T. Stewart, of Salt Lake City, and W. H. Reeder, Jr., of Ogden, for appellant.

David J. Wilson, of Ogden, and Willard Hanson, of Salt Lake City, for respondent.

FOLLAND, J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur.

OPINION

FOLLAND, J.

Plaintiff, a minor, brought this action to recover damages for injuries received by her in an automobile collision alleged to have been caused by the negligence of the defendant. The collision occurred in Ogden Canyon after dark at about 9 o'clock p. m. of October 23, 1929. The headlights on both cars were lighted. Plaintiff, aged 14, another girl of the same age, and three boys (brothers) aged 19, 17, and 16, respectively, were riding down the canyon in the single seat of a 1923, model T Ford coupe. The oldest boy, Thoros Pass, was driving the coupe, and the other boys were sitting on the seat and the girls were sitting on the laps of the boys other than the driver. Defendant, with his wife, daughter, and another lady, was driving up the canyon in a Star sedan. When the impact occurred, the rear end of the Ford coupe swung to the right and tipped over, falling on plaintiff. Plaintiff was rendered unconscious and suffered a compound comminuted fracture of the femur of the right leg. The occupants of each car testified that the car in which they were riding kept on the right-hand side of the center line of the road, and that the other car crossed such line causing the accident by being on the wrong side of the center line.

The negligence charged in the complaint was that defendant drove and operated his automobile at a great and unusual and unnecessary rate of speed, and at a rate of speed that was likely to and did endanger life and property, and without due regard to the width and condition of the highway and character of the traffic thereon, and at a rate of speed in excess of thirty miles per hour, and carelessly and negligently failed to keep any proper or other lookout for vehicles along or upon the highway, and failed and omitted to keep on the right-hand side of the center of the highway, and carelessly and negligently operated his automobile over, across, and to the left-hand side of the center of the highway, thus causing the collision. Defendant answered, denying the allegations of negligence, and alleging that the accident was caused by the negligence of the driver of the Ford coupe, in this: That he operated the car without proper headlights at an excessive rate of speed; that he did not keep his car on the right-hand side of the center of the highway, and that he permitted and allowed too many persons to occupy the car, so that his handling and operation of it was interfered with and obstructed; and that he neglected to keep a proper lookout to avoid collision with others, and failed, after seeing defendant's car, to operate his car so as to avoid the collision; that all these facts and conditions were well known to plaintiff, or that she with reasonable care and diligence ought to have known them, and that she failed to remonstrate or protest against them and failed to exercise reasonable care to prevent accident or injury to herself; that she voluntarily assumed the risk of such conditions and negligent acts of the driver; and that the injuries complained of were caused solely by the negligence of the driver of the car in which plaintiff was riding and by the negligence of plaintiff herself.

The cause was tried to the court with a jury. A general demurrer to the complaint was overruled. Defendant's motion for a nonsuit and motion for a directed verdict were denied. The jury rendered a verdict in favor of plaintiff for $ 4,655, and judgment was entered accordingly. A motion for a new trial was made and overruled. From the judgment and order overruling the motion for a new trial, defendant appeals. Thirty-five alleged errors are assigned and relied on.

The first proposition presented is the alleged error of the trial court in failing and refusing to grant defendant's motion that the jury venire be discharged, and that the case be declared a mistrial on the ground of alleged misconduct by one of counsel for plaintiff in asking Mr. Bock, the first juror examined by him on voir dire examination, a question relative to Intermountain Lloyds, an insurance company, and in making comment and argument with reference thereto within the hearing of the jury. The record made on this subject is as follows:

"Q. (by Mr. Hanson, counsel for plaintiff). Are you acquainted in any way with what is known as Intermountain Lloyds Company?

"Mr. Stewart (counsel for defendant): At this time we take exception to the reference made by counsel and assign it as misconduct, and we ask the court at this time to discharge the jury and call a new venire.

"Court: I will sustain the objection. I think there should be no reference made to that company, and I will admonish you, ladies and gentlemen of the jury, to disregard the reference made to the company just referred to.

"Mr. Hanson: I am going to make a record of this, and I have the authorities on it; I am going to dictate it into the record now.

"Mr. Stewart: Just a moment. If your honor please, we will ask that the jury be excused.

"Court: The company is not a defendant in any sense.

"Mr. Hanson: I know it is not, but it is the party in interest. That is the test, your honor.

"Mr. Stewart: We will ask that the jury be excused during any discussion on this matter."

The jurors were then excused and retired to the hall. In the absence of the jury, Mr. Stewart, one of counsel for defendant, was called to the witness stand, and in response to question by plaintiff's counsel testified that he had been employed by Intermountain Lloyds to defend the case, and, while he did not know of his own knowledge, he assumed that the company carried insurance on Mr. Smith's car. The defendant was examined, and testified over objection that his liability was insured up to $ 5,000 by Intermountain Lloyds, and that the insurance company furnished his attorneys and were defending the case. Before the jurors were called back into the courtroom W. H. Reeder, one of the attorneys for the defendant, testified that he was in the hall during the discussion before the court and heard a part of it, and that the jurors were there, and, if their hearing was as good as his, they could have heard Mr. Hanson's argument. R. E. Smith, the defendant, testified that he also was in the hall during a part of the argument, and that he heard Mr. Hanson say "he was going to ask each juror about or if he was connected with Intermountain Lloyds," and that the jurors were all standing in the hall outside the door at the time. Whereupon the following record was made:

"Mr. Stewart: Now we renew our request that this case be declared mistrial and that the venire be discharged, on the ground that the matter referred to and presented by counsel in court while jurors were in the court room was when one juror was being examined, and also because of the fact that the matters discussed in the court afterwards must necessarily have been heard by jurors while they were waiting in the hall.

"Court: I will admonish the jurors with respect to that matter. I don't think any prejudice has resulted or will result. You may call the jury.

"Mr. Stewart: May I have an exception to the ruling of the court in not discharging the jury?

"Court: Yes, Now you may proceed Mr. Hanson."

To what extent, if at all, counsel for plaintiff may examine a juror with reference to his connection either as stockholder, officer, or employee, or debtor or creditor in an insurance company, which is defending a case pursuant to a contract of insurance with the defendant, is a question of first impression in this court. It is a subject which has aroused considerable controversy in the courts of this country in recent years, and on which there is a great contrariety of decisions. There are two decisions of this court which refer to a related subject but do not directly bear on the question. Beaman v. Martha Washington Mining Co., 23 Utah 139, 63 P. 631; Andrews v. Free, 45 Utah 505, 146 P. 555, 558. In Beaman v. Martha Washington Mining Co., supra, it was held that the asking of a question by plaintiff's attorney of defendant's attorney whether he did not represent an insurance company in the case where no effort was made by the defense to cure the vice is not such an abuse of the privilege of counsel as to require a new trial. In Andrews v. Free, supra, counsel for plaintiff stated in his argument to the jury that it would not mean 5 cents difference to defendants whether judgment went for or against them. The court held that, in the absence of a request for action by the court to strike, to require retraction, or to warn the jury, the question was not reviewable, as the remark was not so flagrantly improper or harmful "that no ruling could have cured the harm." In neither of these cases was the subject-matter of insurance referred to for the purpose of determining the qualifications of jurors.

The universal rule is that it is irrelevant to the issue of negligence whether the defendant is carrying liability insurance or not, and, subject to some qualifications which need not be here mentioned, such testimony is wholly inadmissible. Courts have guarded...