Chavin v. Cope

• Decision Date: 10 May 1968
• Citation: 243 A.2d 694
• Parties: Peggy M. CHAVIN, I. Favel Chavin, and James P. Quinn, Plaintiffs Below, Appellants, v. Beatrice A. COPE, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

Page 694

243 A.2d 694

Peggy M. CHAVIN, I. Favel Chavin, and James P. Quinn Plaintiffs Below, Appellants, v. Beatrice A. COPE, Defendant Below, Appellee.

Supreme Court of Delaware.

May 10, 1968.

Appeal from the Superior Court in and for New Castle County.

Harvey Porter, Wilmington, for appellants.

Richard I. G. Jones of Prickett, Ward Burt & Sanders, Wilmington, for appellee.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, Chief Justice.

This is an appeal from the Superior Court's denial of plaintiffs' motion to set aside verdicts in their favor and for a new trial.

In an appeal from either the grant or denial of a new trial the sole question for determination is whether or not the action of the trial court constitutes an abuse of sound judicial discretion. Trowell v. Diamond Supply Co., 8 Terry 422, 91 A.2d 797. When an act of judicial discretion is under review the reviewing court may not substitute its own notions of what is right for those of the trial judge, if his judgment was based upon conscience and reason, as opposed to capriciousness or arbitrariness. Pitts and Coker v. White, 10 Terry 78, 109 A.2d 786.

The plaintiffs assert several matters as reasons for a new trial.

1. The refusal of the trial judge to permit the asking of certain questions of prospective jurors on Voir dire examination.

2. The refusal of the trial judge to exclude from evidence defendant's Exhibit No. 2.

3. The refusal of the trial judge to instruct the jury as specifically requested by the plaintiffs.

4. The inadequacy of the verdicts.

We will take up the various reasons in the order stated, setting each out more fully as we do so.

This action is one for personal injuries arising out of an automobile accident. The particular circumstances of the accident are not particularly important in this appeal. We will not state them, but will, where necessary, refer to them in our consideration of the various questions presented.

The refusal to permit the asking of certain questions on

voir dire examination of prospective jurors.

The plaintiffs requested that the panel of prospective jurors be asked the followin questions:

1. Are any of you employed by or stockholders in an insurance company which is engaged in the casualty insurance business?

2. Are any of you engaged in the general insurance agency business or are any of you agents for a casualty insurance company?

3. Have any of you ever worked as a claims investigator or insurance adjuster?

4. Are all of you able to render a fair and just verdict in this case without regard to the economic or social positions of any of the parties?

5. Do any of you feel for any reason, including religious, ethical or moral reasons, that you would not be able to render a fair and just verdict on the basis of the evidence as presented, if such verdict involved a substantial amount of money?

6. Do any of you have any religious, moral or ethical feelings that would prohibit you from compensating a person for pain and suffering by the award of money damages?

In addition, counsel for the plaintiffs requested, if questions Nos. 1, 2 and 3 were asked, that the trial judge make it clear to the jury panel that the asking of the questions did not imply either that the defendant is insured or that the matter of insurance or lack of insurance was to be considered by the jury in reaching a verdict.

The Voir dire examination of the jury panel under Civil Rule 47(a), Del.C.Ann. is conducted by the trial judge alone, but counsel are permitted to ask the trial judge to examine the jurors as to certain matters. The trial judge, under the rule, may put the questions if, in his opinion, they are directed toward a proper subject of inquiry. Under the rule, therefore, the matter is left to the sound discretion of the trial judge.

We turn initially to questions Nos. 1, 2 and 3, which obviously were designed to determine whether or not any prospective juror was associated with, or had in the past been associated with the casualty insurance business.

It has long been the rule in Delaware that mention of liability insurance in an automobile collision case is prejudicial to the defendant. Blatz v. Wilson, 5 W.W.Harr. 546, 170 A. 808; Lord v. Poore, 9 Terry 595, 108 A.2d 366. However, the mention of insurance does not Ipso facto require a mistrial. Ordinarily, an appropriate instruction to disregard the statement is sufficient to avoid prejudice to the defendant, but an incident may be so flagrant as to require a mistrial. The question is always one for the sound discretion of the trial judge.

In the case at bar there was no reference during the trial to insurance owned by the defendant. Nor was there anything at all to show a possible connection between any juror and any casualty insurance company. Furthermore, each prospective juror is required to fill out a questionnaire which, among other things, sets out the juror's employment. This questionnaire is open to the inspection of the parties.

We think questions Nos. 1, 2 and 3 are obviously designed to make the jurors aware that the defendant was insured. Under our law, knowledge of this fact is held to be prejudicial to a defendant. To be sure, in some instances that prejudice can be overcome by an appropriate instruction. The plaintiffs requested that such an instruction be given.

We think, however, that the requested instruction immediately following the three questions would serve not to eliminate any possible prejudice, but to point up and impress upon the jurors that the defendant was in fact insured.

The requested procedure, in advance of the drawing of the trial jury, it seems to us, differs sharply from the inadvertent blurting out by a witness of the fact of insurance coverage. The latter prejudice may well be cured by an appropriate instruction. At the outset of a trial, however, for the judge to question the jurors in a manner designed to bring out the prejudicial fact of insurance coverage of the defendant is an entirely different matter. Irrespective of whether or not the requested instruction would cure any prejudicial effect, the trial judge should not, by his own action, introduce a possible prejudicial fact into the jurors' minds.

In any event, the request was addressed to the trial judge's discretion. He rejected it and, in so doing, clearly did not abuse his discretion.

Plaintiffs, however, argue that it was necessary for them to know the answers to their proposed questions in order to exercise their right to challenge jurors peremptorily. They rely upon Kiernan v. Van Schaik, 347 F.2d 775, a decision of the Court of Appeals, 3rd Circuit, reversing the District Court for refusal to ask almost identical questions of prospective jurors upon the ground that the desired information was required for the intelligent exercise of the right to challenge.

We point out that most of the desired information could have been obtained from inspection of the jurors' questionnaires. ^*

In any event, however, we reject the Kiernan case as persuasive authority for the reason that its rule would permit a greater possibility of prejudice to a defendant than benefit to the plaintiff. We prefer the rule of Langley v. Turner's Express, Inc., 375 F.2d 296, a decision of the Court of Appeals, 4th Circuit, which expressly rejects the rule of...