Choy v. Otaguro

• Decision Date: 07 December 1932
• Docket Number: No. 2073.,2073.
• Citation: 32 Haw. 543
• Parties: JOHN S. CHOY v. MOTOMU OTAGURO.
• Court: Hawaii Supreme Court

32 Haw. 543

JOHN S. CHOY

v.MOTOMU OTAGURO.

No. 2073.

Supreme Court of the Territory of Hawai‘i.

Argued October 11, and November 19, 1932.

Decided December 7, 1932.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. W. C. ACHI, JUDGE.

Syllabus by the Court

In the examination of prospective jurors upon the voir dire a plaintiff is entitled to ask all questions which will aid the presiding judge in determining whether a juror should be excused for cause and also, within reasonable limits, all questions which may enlighten plaintiff's attorney upon the question whether he should exercise peremptory challenges.

In an action for damages resulting from personal injuries it is not error to permit the examination of every prospective juror on his voir dire as to his connection with or interest in a named casualty insurance company, irrespective of whether the insurance company is shown to be the insurer of defendant.

When in the declaration in an action for personal injuries it is alleged that the plaintiff, as a result of the defendant's negligence, suffered a number of injuries, which are specifically described, it is not error to permit, at the trial, amendments alleging additional injuries, particularly when the defendant is offered and refuses an opportunity, by delay of the trial, to prepare his defense in respect of the new allegations.

While a court cannot order a plaintiff, in an action for injury to the person, to submit to a surgical examination in advance of the trial, nevertheless, if a plaintiff refuses to show his injuries and to submit to such an examination, when asked to do so, that fact may be proven by the defendant and may be considered by the jury as bearing on the good faith and credibility of the plaintiff.

From the fact of severe bodily injuries, mental suffering which is found to be the necessary and inevitable consequence of the physical injuries may be inferred.

When in cross-examination a question is erroneously disallowed, it is not necessary, in order to preserve a right of review, for the party who asked the question to make an offer of proof.

An objection to a question addressed to a witness on the ground that “it is incompetent, irrelevant and immaterial” does not call to the attention of court or counsel any defect of form which is remediable but waives that defect.F. Patterson and W. T. O'Reilly (also on the brief) for plaintiff.

C. A. Gregory ( Smith, Wild & Beebe on the briefs) for defendant.

PERRY, C. J., BANKS AND PARSONS, JJ.

OPINION OF THE COURT BY PERRY, C. J. (Banks, J., dissenting.)

This is an action for damages for personal injuries resulting to the plaintiff in a collision between a motor cycle which he was riding on a public highway and an automobile driven by the defendant, the essential allegation being that the accident was caused solely by the negligence of the defendant in the operation of his automobile. The jury rendered a verdict for the plaintiff in the sum of $10,000. The case comes to this court on the exceptions of the defendant.

In the examination on the voir dire sixteen of the prospective jurors were individually asked by the plaintiff's attorney substantially the following question: “Do you own any stock in the Hartford Insurance and Indemnity Company of Hartford, Connecticut?” One defendant only was named in the action and that was the person charged with having negligently operated the automobile. No insurance company was named as a party defendant. It does not appear from the record that any attorney, agent or other representative of any insurance company conducted the trial on behalf of the defendant or took any part in the proceedings. No evidence was adduced at any time during the trial tending to show that the defendant was insured in the insurance company named or in any other insurance company, nor was there any admission by the defendant or assertion by the plaintiff that he was in fact so insured. Each of the questions asked of the prospective jurors, concerning ownership of stock in the insurance company named, was objected to by the defendant “as being incompetent, irrelevant and immaterial,” the objections were overruled and exceptions were duly preserved. The contention of the defendant upon these exceptions is that the questions were asked by counsel for the plaintiff in bad faith and for the sole purpose of giving the jurors the impression that the defendant was protected by insurance against any verdict which might be rendered against him by the jury.

It is too clear to admit of doubt that ordinarily in the trial of an action for personal injuries, after the jury is sworn, evidence is not admissible tending to show either that the defendant is insured or that he is not insured. It is ordinarily utterly irrelevant to the issues in such a case whether a policy of insurance has been issued; and yet this simple rule, like other rules, has its exceptions. For example, if a person who is a stockholder, officer or employee of a casualty insurance company which has insured the defendant is called to the stand by the defendant and gives testimony on some or all of the issues in the case, it may properly be shown by the plaintiff on cross-examination of such a witness that he bears the relationship named to that insurance company and this is so because the fact of that relationship has some bearing upon the degree of credibility to be attached by the jury to his testimony. Again, if the plaintiff is able to show an express admission by the defendant, shortly after the occurrence of the accident, to the effect that he, the defendant, was negligent, as for example, because he was looking elsewhere at the time and was not attentive to his duty as a driver, that admission being coupled with a statement to the effect that, “But I don't care because I am carrying casualty insurance,” the testimony of such an admission, including the reference to casualty insurance, would be admissible because, obviously, it would tend to prove, out of the defendant's own lips, that fact and the details of his negligence. There may well be other exceptions to the ordinary rule above stated. If any prejudice results to the defendant in these exceptional instances, by reason of the jury thus gaining the knowledge of the existence of the insurance, that is something which is unavoidable because the plaintiff is entitled to present to the jury the evidence of the defendant's admission against interest.

It is too clear, also, to admit of doubt that in the examination of prospective jurors upon the voir dire, a plaintiff is entitled to ask all questions which will aid the presiding judge in determining whether a juror should be excused for cause and also all questions which may enlighten plaintiff's attorney upon the question whether he should peremptorily challenge the juror. R. L. 1925, Sec. 2416, as amended by Act 294, L. 1931. There may be, of course, limits beyond which such an examination should not proceed. No definite statement of those limits can be formulated in advance to apply in any or all cases. Much must be left to the discretion of the presiding judge.

If an insurance company is a party defendant there can be no doubt that a challenge for cause should be sustained in the case of any juror who has disclosed, by his answers, that he owns stock in the company or that he is an officer or agent of the company or that he is employed by it. Obviously, it would not be fair to require the plaintiff to have the case tried by a jury composed of agents or employees of a defendant insurance company. If, on the other hand, an insurance company is not a party defendant, but, in a personal injury case, is the insurer of the defendant and if a prospective juror, under those circumstances, discloses that he is an officer, agent or employee of the insurance company, without deciding now, for it is unnecessary to do so, that in such a case good ground of challenge for cause would exist, the facts disclosed would certainly justify a plaintiff in exercising his right to a peremptory challenge. If the insurance company is actively defending at the trial so that it is patent to the jurors and all concerned that it is interested as insurer, plaintiff's attorney could properly inquire of the jurors whether any of them were interested in the insurance company. It is always permissible to show interest in order to show bias and prejudice. Instances, however, may well occur when, without its appearing, by proof or otherwise, at the trial, that the defendant carries insurance, plaintiff's attorney has knowledge or information to the effect that a named company is the insurer of the defendant. In such instance he should be permitted to inquire of the jurors concerning their interest in that insurance company. We think that the same rule also should apply in case of a plaintiff who has no knowledge or information on the subject but simply desires to acquire that knowledge and that, for that purpose, he should be permitted to ask the direct question of jurors.

The argument of the defendant proceeds, largely if not wholly, upon the assumption that when jurors are directly informed, or are given cause to believe or to suspect, that a defendant in a personal injury case is insured, immediately those jurors become incapable of performing their duties honestly and impartially and will violate their oaths by deciding too easily in favor of the plaintiff or by awarding the plaintiff a larger amount in damages than they otherwise would. To adopt such a view would be an insult to the intelligence and the fidelity of jurors and to the jury system as a whole. To adopt such a stand would be, in effect, to declare that in any case in which a casualty insurance company is named as a defendant a just verdict would probably be unattainable. We have confidence that in a personal injury case, whether the insurance company is or is not made a party defendant, the jurors, upon being clearly and...