Cady v. Lang

• Decision Date: 04 October 1921
• Citation: 115 A. 140,95 Vt. 287
• Parties: A. LEE CADY, ADMR. v. MARY E. LANG
• Court: Vermont Supreme Court

115 A. 140

95 Vt. 287

A. LEE CADY, ADMR. v. MARY E. LANG

Supreme Court of Vermont

October 4, 1921

May Term, 1921.

ACTION OF TORT for negligence causing an automobile accident resulting in the death of plaintiff's intestate. Plea the general issue. Trial by jury at the December Term, 1920 Windsor County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed and cause remanded.

S Hollister Jackson and Erwin M. Harvey for the defendant.

Charles Batchelder for the plaintiff.

Present: WATSON, C. J., POWERS, TAYLOR, MILES and SLACK, JJ.

OPINION

WATSON

This action is based on alleged negligence by the defendant in running her automobile on June 1, 1919 resulting in the death of the plaintiff's intestate.

In examining the jurors on the voir dire, plaintiff's attorney inquired whether any of them were policy holders in or members or stockholders of any insurance company that engages in the business of insuring the owners or drivers of automobiles against individual responsibility. Exception was taken "to both the question and its being permitted to be answered." It is not perceptible how the mere fact that a juror was or was not a policy holder in a stock insurance company engaged in the business mentioned, could in any view of the matter be a proper subject of such examination. As well might the jurors be examined in a case based on a policy against loss by fire, whether any of them hold a policy in any stock company which insures property against loss by fire. This is getting too much into the realm of immateriality. However, the objection being to the entire question, we cannot say the ruling was erroneous.

E. M. Harvey, one of the attorneys trying the case in defence, was called as a witness by defendant. In cross-examination the plaintiff was permitted, subject to exception, to ask whom the witness represented in the case, and whether he represented "a liability insurance company interested in the outcome of this litigation." The witness answered, stating his understanding to be that he represented Mrs. Lang, and he appeared as her attorney; but his information was, through his associate attorney in charge of the case, that his employment was authorized by an insurance company, giving the name of the company. Under the holding in Raymond's Admx. v. Rutland Ry. Light & Power Co., 90 Vt. 373, 98 A. 909, such examination was proper as showing the interest of the witness. But in arguing the case to the jury plaintiff's attorney was not content with urging such interest as affecting the weight to be given to the testimony of the witness. He stated that the witness was "the attorney for an insurance concern which issued a policy protecting her (defendant) from the result of her own negligence." Objection was made on the ground that this was unwarranted by the evidence, and exception was saved. No retraction was made. This exception was well taken. The record shows no evidence as to the policy or its provisions, and the making of such statement to the jury constitutes reversible error.

Before and at the time of the accident in question, Edward H. Edgerton, an attorney at law residing in the town of Rochester, the town of the intestate's residence, was and ever since has been one of the assistant judges of Windsor county court in which this suit was brought. Yet, nevertheless, he became and was one of plaintiff's attorneys in the bringing of the suit, and his name, with that of associate counsel, was so indorsed on the writ.

On the opening day of the term of that court, December 7, 1920, Judge Edgerton was present in court and acting in his judicial capacity. The trial of this case was commenced on the coming in of the court the next morning, and continued for three days when a recess was taken. The trial was resumed on the 15th of the month, closing on the 16th.

Judge Edgerton did not sit on the bench nor act with the other judges during the trial, but when in court he, on the contrary, occupied a seat within the bar apart from the counsel actively engaged in the trial. He did not consult with counsel in court during the trial, nor appear with them before the court at any stage of the proceedings, except as stated below. It was conceded, however, that, when out of the presence of the jury, during the daytime, and while the court was in recess, he consulted with other counsel for the plaintiff regarding the conduct and management of the case. And in the course of the introduction of evidence by the defendant, and while a witness called by her was under cross-examination, Judge Edgerton arose from his seat within the bar, crossed the room to the table in use by counsel for the plaintiff, and, in the presence of the jury, handed to one of his associate attorneys a slip of paper, and immediately resumed his seat. This paper contained, in the handwriting of Judge Edgerton, a suggestion concerning the cross-examination of the witness. Immediately following this incident, defendant's attorneys applied to the court to discharge the jury, claiming that, in order to maintain the sanctity of our courts, it should be held in the circumstances to be a mistrial; that counsel for defendant had just realized the situation by asking Judge Edgerton why he was not sitting on the bench, and being informed by him that he had helped in the preparation of the case, and (as counsel for defendant believe) he is now in court apparently helping in the conduct of the trial; that this is contrary to public policy, and contrary to our system of running courts; that because of these facts a situation is presented which is prejudicial to the defendant, and the trial should be stopped. The court ruled as matter of law that Judge Edgerton can act as counsel in a cause in which he is counsel of record, that the parties are in no way hurt by the procedure, and that the trial proceed. To this ruling exception was saved. The question thus presented is one involving most serious consequences, and, so far as we are aware, is now before the Court for the first time in the history of the State. Simplified it is: Can a judge of the county court, a court of general, and in some instances of appellate, jurisdiction, during his term of office, lawfully accept a retainer as an attorney to bring a suit for another person in the court of which he is a member, in which suit he has no individual interest and to hear which as part of the court he is not otherwise disqualified, and there engage in the trial or management of the case under such retainer?

"Every person within this State," says the Constitution, Ch. I., Art. 4, "ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property or character; he ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; conformably to the laws." Again, Ch. II., Sec. 4: "Courts of Justice shall be maintained in every county in this State * * *" Section 28: "The Courts of Justice shall be open for the trial of all causes proper for their cognizance; and justice shall be therein impartially administered, without corruption, or unnecessary delay * * *; and the several judges of the County Courts, in their respective counties (shall be Justices of the Peace) by virtue of their office, except in the trial of such causes as may be appealed to the County Court."

That the constitutional rights thus declared might be fully realized as intended, statutes were early enacted, containing rules and inhibitions, some fundamental in character, to be observed in the administration of justice: By G. L. 1482 (first enacted in its principal features as to judges more than one and a quarter century ago), "A justice of the Supreme Court, chancellor, judge, justice of the peace, master in chancery, juror or other person shall not act in a judicial capacity in or as trier of a cause or matter in which he has been retained or acted as an attorney or counsel, or is interested in the event of such cause or matter, * * * nor shall he be permitted to appear as attorney or counsel in a cause in which he has acted in such capacity or as trier * * *."

These statutory provisions should be construed so as, if possible to make them consistent with the Constitution and the paramount law. Presser...