Cooper v. Kelly

• Decision Date: 22 October 1917
• Docket Number: 176
• Citation: 198 S.W. 94,131 Ark. 6
• Parties: COOPER v. KELLY
• Court: Arkansas Supreme Court

198 S.W. 94

131 Ark. 6

COOPER v. KELLY

No. 176

Supreme Court of Arkansas

October 22, 1917

Appeal from Garland Circuit Court; Scott Wood, Judge; affirmed.

Affirmed.

Buzbee Pugh & Harrison, for appellant; E. V. Mitchell, of counsel.

1. The court erred in permitting counsel for plaintiff to question the jurors on their voir dire in reference to casualty and indemnity companies, and in permitting him to make statements to the effect that such companies insure against damages etc.; which line of questioning and remarks were improper and prejudicial. 104 Ark. 1; 114 Id. 542.

2. The instructions given on plaintiff's theory were erroneous and prejudicial. Nos. I and 2 were abstract. 111 Ark. 134; 116 Id. 284, 291; 101 Id. 537.

3. The court erred in refusing instructions asked by defendants. 96 Ark. 206; 82 Id. 499; 97 Id. 469. No negligence was proven and the verdict is excessive.

Rector & Sawyer, for appellee.

1. There was no error in permitting the voir dire questions to jurors. The cases in 104 Ark. 1 and 114 Id. 542 do not apply here. The facts are different. The questions asked were proper and no abuse of discretion by the court was shown.

2. There is no error in the instructions; the verdict is sustained by the evidence and is not excessive. 29 Cyc. 570.

OPINION

WOOD, J.

This suit was instituted by the appellee against appellants to recover damages for personal injuries which she alleged she sustained in January, 1914, while walking across Central avenue, a public highway, in the city of Hot Springs. She alleged that the appellants were doing a livery business under the name of Cooper Brothers in the city of Hot Springs and were the owners of a vehicle and horses which were being driven along Central avenue by the servant of appellant; that such servant so carelessly and negligently drove and managed the horses that the horses and vehicle struck the appellee, throwing her to the ground and breaking her arm and inflicting other severe injuries, for which she asked damages in the sum of $ 5,000.

The appellants denied the material allegations of the complaint, and set up the defense of contributory negligence.

When the selection of the jury was begun counsel for appellee called counsel for appellant before the court, out of the hearing of the jury, and announced that he was informed and believed that appellants' counsel represented an indemnifying company which was interested in the result of the suit and wanted to know the name thereof so he could properly examine the jury on voir dire. Appellants' counsel refused to give the name. The court refused to compel counsel to disclose the name, but, at appellee's request, announced that it would permit counsel to examine the jurors as to their relationship with indemnifying companies so as to determine the jurors' interest. Whereupon counsel for the appellee, over the objection of the appellants, asked one juror on his voir dire whether or not he represented any accident or casualty insurance company, to which question the juror answered, "No." And appellee's counsel asked another juror whether or not he was under any obligation to any accident insurance company or was the agent of any such company. The juror answered, "No." And other jurors were asked, "Do you know of any accident company or any agent of such company that has any influence or control over you in the city of Hot Springs?" to which they answered, "No." And another juror was asked whether he knew that parties in public business were insured against accidents that occurred, and the juror answered, "Yes." Then the juror was asked, "Do you know of any insurance company or casualty company or any agent of such company, in Hot Springs or anywhere else, to whom you are under obligations?" and the juror answered "No," Still another juror was asked, "Do you know any of these accident casualty companies?" and the answer was, "Know all of them, I suppose." Question, "They haven't any hold on you?" Answer, "None that I know of, nobody else."

The rulings of the court in permitting these questions and answers are assigned as error, and to sustain their contention that these rulings are erroneous, counsel for appellants rely upon the cases of Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S.W. 83, and Williams v. Cantwell, 114 Ark. 542, 170 S.W. 250.

In the first mentioned case, after both parties had announced ready for trial, and while several members of the petit jury were in the box, counsel for the plaintiff asked one of the attorneys for the defendant if he represented an insurance company in the case. The attorney questioned answered that he represented the defendant. The court announced that that was not an answer to the question, and upon the attorney declining to answer further the court stated that he should not appear in the case, whereupon the attorney withdrew from the case. Upon the above facts the court held that the authority of an attorney to appear for a client whom the attorney stated that he represented could not be challenged in the above manner and the attorney denied the right to appear for the client whom he professed to represent.

In the above case the attorney for the plaintiff contended that he propounded the questions to the defendant for the purpose of ascertaining who were the interested parties in order that he might use the information to test the qualification of the jurors on their voir dire. In commenting upon this contention, the court said: "If counsel for plaintiff honestly and in good faith thinks that any of the veniremen is in any way connected with a casualty company insuring the defendant against loss for the injury complained of in the case, he can ask the jurors on their voir dire relative to this. If, however, his real purpose is to call unnecessarily the attention of the jury to the fact of the insurance, and thereby to prejudice them against the defendant's rights, then this would be clearly an abuse of this privilege, and should be promptly stopped by the trial judge. In case it appears that prejudice to the rights of the defendant does result therefrom, it would call for a new trial or a reversal of the judgment on appeal. In an action by a servant against his master for damages growing out of a personal injury, it is improper for the jury to take into consideration the fact that the defendant is indemnified against accident to his employees. Evidence of such fact could throw no light upon the issue involved in the case, and would be wholly incompetent. The endeavor, therefore, by any character of practice, to press unnecessarily upon the jury's attention the fact that a defendant is indemnified against loss for the injury which is the subject-matter of the suit could only have for its purpose the arousal of sympathy for the one party or prejudice against the other. Such action or practice is therefore improper, and, if successful in its desired effect, should call for a new trial."

In Williams v. Cantwell, supra, the attorney for the plaintiff, not in the presence and hearing of any of the veniremen, asked the attorney for the defendant if he was not the attorney for and representing the Home Life and Accident Insurance Company, and upon the attorney for the defendant declining to answer, the attorney for the plaintiff addressed the court, in the presence and hearing of the veniremen, and said: "Your Honor, this gentleman here (indicating the attorney for defendant), in my opinion and information, does not represent the defendant, but represents an insurance company for him, and for the purpose of inquiring from the gentleman, and for that purpose only, as to whether he is representing the insurance company, I am asking, in good faith, who his client is, and I ask you, as you did for me, and as the Supreme Court upheld you in doing to require him to state who he represents." In questioning the veniremen as to their qualifications as jurors the attorney for plaintif...