Berry v. Park

• Decision Date: 10 December 1940
• Docket Number: Case Number: 29917
• Parties: BERRY v. PARK
• Court: Oklahoma Supreme Court

1940 OK 481

110 P.2d 902

188 Okla. 477

BERRY v. PARK

Case Number: 29917

Supreme Court of Oklahoma

Decided: December 10, 1940

Syllabus

¶0 1. TRIAL--Right of plaintiff in personal injury suit to question prospective jurors as to their connection with indemnity insurance companies.

In the voir dire examination of jurors in a personal injury case plaintiff's counsel may in good faith interrogate prospective jurors to ascertain their interest in or connection with indemnity insurance companies, for the purpose of learning their qualifications as jurors, and not to leave the impression that defendant actually is insured.

2. NEW TRIAL--Ground of newly discovered evidence--Affidavit required to state facts showing diligence.

Where a new trial is sought on the ground of newly discovered evidence, an affidavit stating the material facts constituting the exercise of reasonable diligence to discover and produce such evidence at the trial is required. The requirement is not satisfied by an allegation that reasonable diligence was used to discover such evidence or procure witnesses, same being a conclusion.

3. SAME--APPEAL AND ERROR--Review of order denying new trial.

Where, on a motion for new trial on the ground of newly discovered evidence, the movant has failed to carry the burden of proof or where there is evidence to support the findings denying the new trial, the appellate court will not disturb the findings on sufficiency of the evidence.

4. NEW TRIAL--Ground of newly discovered evidence--Lack of diligence shown in failure to inquire of persons likely to know facts.

The failure to make inquiry of persons likely to know the facts constituting alleged "newly discovered evidence", such persons being reasonably available upon ordinary inquiry, and there being no hindrance to such inquiry, is failure to exercise reasonable diligence to discover such evidence as might have been established by said persons as witnesses.

5. SAME--APPEAL AND ERROR--Discretion of trial court as to granting new trial.

The granting of a new trial on the ground of newly discovered evidence rests largely in the trial court's discretion, and its action in overruling the motion will be affirmed by the reviewing court in the absence of an abuse of discretion.

6. SAME--Exclusion of newly discovered evidence at hearing on motion for new trial not reversible error where diligence not shown by movant.

Where the movant for a new trial on the ground of newly discovered evidence has failed to prove reasonable diligence to procure said evidence prior to the trial, the exclusion of said newly discovered evidence, at the hearing on the motion, is immaterial and will not require a reversal of an order denying a new trial.

Appeal from District Court, Payne County; Henry W. Hoel, Judge.

Automobile collision personal injury damage action by Robert M. Park against William Berry. Judgment for plaintiff, and defendant appeals. Affirmed.

Swank & Swank, of Stillwater, for plaintiff in error.

Brown Moore and Guy Horton, both of Stillwater, for defendant in error.

NEFF, J.

¶1 In an automobile collision action for personal injuries the plaintiff recovered a verdict and judgment. The defendant appeals.

¶2 The first contention is that the trial court erred in refusing to declare a mistrial because of questions asked a certain juror on the voir dire examination. It is contended that the questions informed the jury that the defendant carried liability insurance. When the attorney for the plaintiff was examining the prospective jurors it was discovered that the juror in question was in the insurance business. The attorney asked him if he wrote automobile accident insurance, whether he had recently written any such insurance, or ever had, and whether he had any stock in any automobile accident insurance company. The answer to those questions was in the negative, and to the effect that the prospective juror was engaged exclusively in handling life insurance and that there was nothing in his experience as an insurance man which would embarrass him in rendering a verdict against the defendant if the evidence should justify it.

¶3 This subject has frequently been before us. In one case the questions were held to be of a nature imparting information to the jury that the defendant was insured, thus calling for a reversal, and that was in a prior appeal in this same cause, when the attorney for the plaintiff had asked a juror, "Do you know Mr. Crowe, the adjuster for Mr. Berry, sitting over there, the man from Oklahoma City?" Berry v. Park, 185 Okla. 118, 90 P.2d 425. But it is well established that in the voir dire examination of jurors in a personal injury case the plaintiff's counsel may interrogate prospective jurors with respect to their interest in or connection with indemnity insurance companies, if he does not leave the impression that defendant actually is insured. This is for the purpose only of ascertaining the qualifications of the jurors, so that counsel may thereafter exercise his right of challenge in a proper manner. Beasley v. Bond, 173 Okla. 355, 48 P.2d 299. In that case we said:

"In permitting this practice, the courts proceed on the theory that if such questioning be interpreted by the jury as an inference that an insurance company is back of the defendant, thus invading the defendant's rights, nevertheless the plaintiff has the equally important right to elicit from the prospective jurors sufficient information that he may intelligently exercise his right of challenge. It is well known that plaintiffs rightfully object to juries composed of men who by the very nature of their business adopt an attitude of mind antagonistic to the payment of such claims as plaintiff is at the time presenting in court. Since perfection is often impossible, the conjecture that defendant may be improperly prejudiced by such voir dire examination is looked upon as merely an unfortunate possibility which, notwithstanding, is not permitted to override the valuable right of plaintiff to try his case before disinterested parties--a choice of the lesser of two evils."

¶4 The rule and reasoning in the Beasley Case have been consistently adhered to in the following decisions: Green Const. Co. v. Lampe, 174 Okla. 351, 50 P.2d 286; Kennedy v. Raby, 174 Okla. 332, 50 P.2d 716; Safeway Cab Service Co. v. Minor, 180 Okla. 448, 70 P.2d 76; Rogers v. Dickerson, 180 Okla. 595, 71 P.2d 729; Tulsa Yellow Cab, Taxi & Baggage Co. v. Salomon, 181 Okla. 519, 75 P.2d 197; Belford v. Allen, Adm'r, 183 Okla. 256, 80 P.2d 671. However, the rule is limited to the necessities of the reasons behind it; and if counsel, in the pursuit of his right, oversteps the limitations described so thoroughly in the foregoing cases that repetition thereof is unnecessary here, he must suffer the consequences of a mistrial or reversal. Berry v. Park, supra.

¶5 If this were a close case it would justify a more extensive discussion. However, it is apparent that in the character of the questions asked herein, as delineated above, counsel was safely within his rights as outlined in the Beasley Case and other cases, supra.

¶6 The next contention is that the trial judge abused his discretion in refusing to grant a new trial on the ground of newly discovered evidence. The newly discovered evidence consisted of facts which might have shown that after the first trial of the case, and about a year and two months prior to the present trial, a scaffold about four or five feet high on which plaintiff was working fell to the ground and that plaintiff was injured thereby. We presume that if defendant had obtained this information prior to the trial it would have been used for the purpose of reducing the amount of the verdict. Comparison of the two verdicts is not of particular benefit, the first having been $2,000 and the present $2,500. If the present verdict had been $1,500, that fact would have been no more potent in denying the contention than the $500 increase would be in approving the contention, since two different juries, on the same state of facts, might easily differ that much.

¶7 The fact of controlling significance here is that apparently the trial judge was not convinced, by the evidence offered at the hearing of the motion for new trial, that defendant had used due diligence to discover...