Darr v. Buckley, 10
| Decision Date | 19 February 1959 |
| Docket Number | No. 10,10 |
| Parties | Harry F. DARR, Plaintiff and Appellant, v. Henry C. BUCKLEY, Defendant and Appellee. |
| Court | Michigan Supreme Court |
Markle & Markle, Detroit, for plaintiff and appellant.
Erickson, Dyll, Marentay & Slocum, Detroit, for defendant and appellee, James R. Daoust, Detroit, of counsel.
Before the Entire Bench.
This is an automotive negligence case. The jury returned a verdict in favor of defendant, on which judgment was entered. Plaintiff's appeal presents but one question, stated by his counsel with rule-required comment as follows:
'Should the Trial Judge have questioned prospective jurors to determine whether they were fellow members of defendant in a reciprocal inter-insurance exchange and automobile club?
'The Trial Judge said 'No'.
'Plaintiff and appellant say such questions should have been asked.'
By a pleading entitled 'Request for interrogation of Jurors Upon Voir Dire' plaintiff asserted that defendant was, at the time of suable events, a member of the Automobile Club of Michigan and an insured of the Detroit Automobile Inter-Insurance Exchange; that the Exchange was and is a reciprocal or mutual organization; that the insurance carried by defendant with the Exchange protected him against liability as alleged by plaintiff; that counsel for defendant are employees of the Exchange and that their representation of the defendant 'is solely by reason of the defendant's insurance'; that the Exchange 'is one of the largest automobile insurers in this state and has many thousands of members and persons insured within the County of Wayne and the area from which the jurors herein are selected'; that each of the members of the Exchange 'has a direct financial interest in and a pro rata ownership of the assets and reserves' of the Exchange; that each member of the Exchange has 'a direct financial interest in the outcome of this action' and, in general, that prospective jurors should be examined in open court 'concerning their connection with or membership in said Club or Exchange.'
By such request for interrogation plaintiff moved that the trial judge 'ask of each person drawn as a juror' questions as follows:
'1. Do you carry a policy of automobile insurance?
'2. Is your automobile insured with a mutual company or in a reciprocal inter-insurance exchange?
'3. In what mutual insurance company or through what reciprocal interinsurance exchange are you insured?
'4. Are you a member of the Automobile Club of Michigan commonly known as the Triple A?
The trial judge ruled:
'The Court is of the opinion that the language of the statute is mandatory, and bars any reference whatever during the trial to an insurance company, and for that reason the Court is going to deny the request made here on behalf of Mr. Darr by Mr. Markle.'
It is not shown that plaintiff's counsel, since the jury was discharged, has sought information from the Exchange or defense counsel for the purpose of obtaining answers to the above interrogatory questions or, for that matter, that counsel has interested himself in the obtaining of information tending to establish, as a basis for new trial, relevant interest or bias of members of the jury as sworn. It is evident, by and large, that counsel was and now is intent on an open court injection into the case, by means of voir dire examination, of the fact or impression that an invisible defendant stands back of the visible defendant in a financial way.
Actually, the stated question was brought here for the salient purpose of testing Judge Gilmore's right to apply the statutory provision to which he referred. In so many words, that provision since 1929 has attemptedly banned all reference to insurance and the 'carrying of such insurance' during the trial of a case such as this plaintiff has declared upon (see the italicized portion of § 33, subd. 6, chapter 2, part 3, of the former insurance code [C.L.1948, § 522.33] and § 3030 of 'The insurance code of 1956' [P.A.1956, No. 218]). In such connection counsel points to Harker v. Bushouse, 254 Mich. 187, 236 N.W. 222, 224, and Fedorinchik v. Stewart, 289 Mich. 436, 286 N.W. 673, and contends for constitutional reasons given in Harker that such provision is void in so far 'as it attempts to control judicial power.' This brings us to the summit of the presented question.
We suggest that the Court was right as to premise but wrong of conclusion in Harker. It is true that the legislature cannot dictate or control the procedures of our circuit courts. Authority of such...
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