Bunch v. Crader
|369 S.W.2d 768
|19 July 1963
|Marion BUNCH, Plaintiff-Respondent, v. Liman Odell CRADER, Defendant-Appellant.
|Court of Appeal of Missouri (US)
Green & Green, H. D. Green, West Plains, for defendant-appellant.
Esco V. Kell, West Plains, for plaintiff-respondent.
The occasion: a collision between plaintiff's pickup truck and defendant's automobile on the curve of a snowy country road. The appeal: from a judgment on general verdict for $1800 in favor of the plaintiff.
Appellant's first complaint is in reference to the voir dire examination. Prior to inquiry counsel exchanged the customary information as to liability insurers. Defendant's insurer was the M. F. A. Mutual Insurance Company. Upon first inquiry several members of the jury panel raised their hands to indicate they were policyholders in the M. F. A. Mutual Insurance Company. Then the following:
Mr. Kell: 'Would the fact that you are policyholders in the M. F. A. Insurance Company cause you to be biased and prejudiced and prevent you from rendering a fair and----'
Mr. Green: 'If the Court please, we object to that question and ask that it be stricken because it is highly prejudicial.'
This objection was renewed outside the presence of the jury and overruled. However, plaintiff's counsel did not further pursue that inquiry. His next question was:
'Are any of you or any members of your family employees of the M. F. A. Insurance Company?'
Juror Felty: 'I am an agent.'
Mr. Kell: 'Do you know anything about this accident in any way?'
Juror Felty: 'No.'
Mr. Kell: 'You are one of the adjustors?'
Mr. Green: 'We object to that and ask the jury to disregard it.'
Mr. Kell: 'Does Mr. Carr work out of your office, Mr. Felty?'
Mr. Kell: 'And has he ever discussed this case in any way?'
Juror Felty: 'No.'
Mr. Kell: '--told you any facts about it?'
Mr. Green: '--again, I ask that the jury be discharged because these remarks are highly prejudicial to the rights of the defendant.'
The Court: 'Overruled.'
Appellant's counsel contends that the action of the trial court was prejudicial in permitting too much emphasis on 'insurance.' With the frankness and forthrightness which we have learned to expect from him, he confesses that he has found no appellate decision which sustains his theory. But he states that the practice of the appellate courts in condoning acts of counsel 'in revealing insurance coverage through * * * innuendo,' on voir dire is 'fallacious and ridiculous' (and hypocritical?), and he states that he makes this contention 'mid glorious hopes and dreadful fears.'
It is so well settled as not to require statement of supporting authority that a litigant has a right to know which members of the jury panel are, or might be, interested in the result or outcome of his lawsuit; and a plaintiff has the right to ascertain whether any of the jury members are connected with an insurance company which has an interest in the litigation. 1 We have come a long way since the condition of affairs mentioned in Chambers v. Kennedy, Mo., 274 S.W. 726, to the effect that it was only a remote possibility that a jury panel would contain persons interested in an insurance company. We think that, since The Motor Vehicle Safety Responsibility Law, it is common knowledge that a great majority of the drivers of automobiles carry liability insurance, and therefore the odds are that the average juror is so insured. It is also a fact, which is at least subject to argument, that the average insured juror realizes that claims against liability carriers furnish the premium basis, and that the greater the losses the higher the premiums.
Nevertheless, it is improper to stress or emphasize insurance with the view of conveying to the jury the idea that an insurer, not the defendant, will be the one to pay the judgment. 2 We think, absent special circumstances, the better practice is to ascertain whether any panel member is interested by asking one general question. If there be no affirmative answer to that question, the matter should ordinarily rest there; but, if there be affirmative answers, counsel might possibly need to make further inquiry in order to ascertain the reality or extent of the interest. The inquiry must be in good faith and must be one which develops in a natural manner and without undue emphasis. 3
The trial judge has a sound discretion to exercise in control of the voir dire. It is only where there has been a manifest abuse of that discretion and where there is probability of injury to the defendant that the appellate courts will interfere. 4
In this case it appears to us that there is nothing to indicate bad faith on the part of counsel in making inquiry. It appears also that the learned trial judge kept a tight rein on the conduct of the voir dire and certainly did not abuse his discretion. As to inquiry concerning Mr. Carr (the only one upon which a motion to discharge was based), the record does not show just who he was. He was not called as a witness; but we are of the opinion that the record does not show any probability of prejudice by reason of the inquiry.
The collision occurred on January 27, 1961, in the forenoon at a curve in what is known as the Old Horton Road. This is an unmarked, graded, gravel country road which runs through the timber. The immediate area is 'pretty well level.' The road runs generally east and west, but there is a 'tolerable sharp curve.' Presumably a driver going east would approach or enter this curve while traveling in a northeasterly direction. One traveling west would approach or enter the curve in a northwesterly direction. The apex or 'sharp' part of the curve is to the north. At this point a woods road comes in from the north and joins the Horton Road. The evidence most favorable to the verdict and judgment is that the width of the Horton Road at the apex of this curve is twenty-one feet. The width of the entrance to the woods road coming in at the north apex of the curve is eighteen feet. There is no ditch on the north side of the Horton Road. On the south, or inside, of the curve is a ditch or bank about a foot high. 'You can drive right up against the shoulder of the road.' From the description given by the witnesses and from the exhibits, we believe this ditch, bank, or 'raised shoulder' can best be described as the type which could have been cut by a road grader blade. A fence was some twelve to thirteen feet south of this ditch or bank. In the space between, the trees had been cut out. Some sprouts or brush had grown up. Just how many and how thick, as an obstruction to sight, was a matter of dispute. 5 There is no very definite evidence as to sight distance between two vehicles approaching or entering this curve. The only evidence we have as to distance in feet is the defendant's statement that, as he came around the curve, he saw plaintiff when the vehicles were 'about forty or sixty feet, possibly a little farther' apart. Defendant said, 'I was traveling, I'd estimate, about twenty miles an hour.' There is no reason why plaintiff could not have seen defendant at the same time.
It had snowed the previous day, or a day or so before the accident, and there was snow, from two to four inches deep, on the road. As is customary on country roads, a single set of tire tracks or 'ruts' had been made along this road. At the curve these tracks or ruts were on the south or inside of the curve. Plaintiff, in his pickup, coming from the west, and defendant, in his automobile coming from the east, were apparently both following the beaten out tracks or ruts. Plaintiff said, Plaintiff's truck and defendant's car met almost head-on on the inside of the curve on the south side of the road approximately opposite from the entrance to the woods road. Plaintiff's truck was approximately two feet from the ditch or bank on the inside of the curve. Defendant's left fender struck about the center of plaintiff's pickup. Witnesses for plaintiff traced his skidmarks extending backward from his vehicle a distance from 'the length of the pickup' to 'two or three times the length of his pickup.' Skidmarks of the defendant's car 'didn't quite extend out from under the back end of his car' or 'about three foot of skid mark in the snow.'
Plaintiff Bunch testified that he was driving on his south side of the road and that the road was wide enough for three pickups to drive on. He said he was watching the road ahead; that he had no warning that defendant's car was on the curve until he saw it. He guessed he could see defendant as soon as defendant could see him. He put on his brakes immediately and the collision 'happened mighten-nigh instantly; didn't more than see him until, it looked like, he struck me right near the center.' He didn't have time to sound his horn. Defendant testified that there was a single set of tracks and the rest of the road was crusted ice and snow 'that made it almost impossible to travel.' On the other hand, plaintiff's witness testified that the ruts or tracks were slick, but, as to the rest of the road, 'I don't want to say it was slick; there was gravel underneath it.' It does appear that other vehicles which came afterwards, and while the two vehicles were sitting where they had collided, did drive around on the north side of the road.
Plaintiff's verdict-directing instruction submitted four grounds of negligence in the disjunctive, viz., (1) failure to keep a lookout, (2)...
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