Duff v. Page

• Decision Date: 18 October 1957
• Docket Number: No. 15186.,15186.
• Citation: 249 F.2d 137
• Parties: Jennie R. DUFF and Elizabeth Bronson, Appellants, v. H. L. PAGE, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

249 F.2d 137 (1957)

Jennie R. DUFF and Elizabeth Bronson, Appellants, v. H. L. PAGE, Appellee.

No. 15186.

United States Court of Appeals Ninth Circuit.

October 18, 1957.

Wright & Eardley, Elko, Nev., Goldwater, Taber & Hill, Reno, Nev., Herman Bedke, Burley, Idaho, for appellants.

Pike & McLaughlin, Reno, Nev., Rex J. Hanson, Salt Lake City, Utah, for appellee.

Before ORR and HAMLEY, Circuit Judges, and GOODMAN, District Judge.

HAMLEY, Circuit Judge.

Two of the three plaintiffs in this automobile accident case appeal from a judgment for defendant, entered on a jury verdict. The questions presented here relate to the voir dire examination of jurors, exclusion of evidence, failure to strike certain testimony, giving of one instruction, failure to give four requested instructions, and denial of a motion for a new trial.

The accident occurred on December 31, 1954, on an east-west stretch of Highway U. S. 40, about fourteen miles west of Wells, Nevada. At 10:00 a. m. that day, H. L. Page was in the process of removing an automobile from a snow bank off the north side of the highway. While engaged in this work he had his wrecker, seventeen feet in length, standing in the north, or westbound, traffic lane.

For a distance of four tenths of a mile to the east, from the point where Page was working, the highway was straight, with an upgrade of 3.34 per cent to the crest of a moderate rise. The road was oil-surfaced, but was variously described as being "icy" or "slushy" on the morning in question. The width of the road was forty-three feet, including about seven and one half feet of mixed oil and gravel shoulder on the north side, and eight feet of shoulder on the south side. The day was clear, with good visibility. No flares, flags, or other warning devices were placed on the highway. The evidence is in conflict as to whether the red blinker light on the cab of the wrecker was in operation at the time.

Mrs. Jennie R. Duff and Elizabeth Bronson were proceeding westerly as passengers in an automobile owned and driven by John A. Duff husband of Mrs. Duff. This vehicle came over the crest of the hill and proceeded down the westerly grade, where it collided with appellee's wrecker.

Joining in one complaint, Duff and his two passengers instituted this diversity suit (28 U.S.C.A. § 1332) in the United States District Court for the District of Nevada. Duff sought reimbursement for damages to his automobile, and for loss of his wife's consortium and services. Mrs. Duff and Elizabeth Bronson sought general and special damages for personal injuries sustained in the accident. Page counterclaimed against Duff for damages to his wrecker, and for general and special damages resulting from personal injuries which he sustained.

The jury found for defendant and against all plaintiffs on the complaint, and for defendant and against Duff, in the amount of $6,816.58, on the counterclaim. Judgment was entered in conformity with the verdict. Mrs. Duff and Elizabeth Bronson appeal.

The first specification of error relates to the voir dire examination of the jury. Prior to the trial, counsel for appellants requested that the trial court ask the jurors, on voir dire, this question: "Do you own any stocks or bonds in the American Casualty Co.?" The court refused to ask this question.

The general rule is that the plaintiff in a personal injury case, acting in good faith for the purpose of ascertaining the qualifications of jurors, and not for the purpose of informing them that there is insurance in the case, is entitled to interrogation of prospective jurors with regard to their interest in, or connection with, indemnity insurance companies.¹ There is a wide range of views, however, concerning the appropriate way to go about such interrogation.

We do not reach the merits of this specification, however, unless there is reason to believe that the refusal to ask this question on voir dire was prejudicial. Trial court action, however erroneous it may be, is not ground for reversal unless such action is inconsistent with substantial justice.² Courts of review have a higher function than to be "impregnable citadels of technicality."³

Appellants say in their brief that the insurance company named in the proposed voir dire question has an interest in this case. We find nothing in the record to support this statement. However, we will assume, for purposes of discussion, that this company had an interest in the case, and that one or more of the jurors may have been bondholders or stockholders of that company.

The jury was not told that American Casualty Co., or any other insurance company, was involved. On voir dire, the jurors gave assurances that none of them had previously heard of the case. If the jurors did not know that this company was involved in the case, their possible ownership of bonds or stocks of that company could not have influenced the verdict rendered. We therefore hold that failure to interrogate the jury in the manner requested was not prejudicial.

Another specification of error relates to the cross-examination and re-examination of a witness called by appellants. This witness was driving up the west side of the moderate hill, past the place where the tow truck operator was working, when appellants' driver, proceeding westerly, came over the crest of the hill. On cross-examination, this witness expressed the opinion (to which no objection was made) that appellants' driver was then traveling "too fast." The trial court sustained an objection to a question asked of this witness on re-examination. Arguing that this was error, appellants state that they wanted to bring out that this witness had no knowledge of the probably dry condition of the highway on the east side of the hill, as compared to the icy condition which confronted appellants' driver when he reached the crest of the hill.

But the question asked of this witness on re-examination, to which an objection was sustained, was not relevant to such an inquiry. The question was: "Tell us what the customary speed would be over the hill." This was an obviously improper question, and the objection to it was properly sustained. The court did not deny appellants the right to prove that the easterly slope of the hill was relatively dry, thus justifying a higher speed than would be prudent on the westerly slope.

One of the specifications of error most vigorously argued relates to the sustaining of objections to certain questions asked of a witness who had long experience as an operator of a towing truck in the area where the accident occurred. One of these questions was hypothetical in nature. It was intended to elicit the expert opinion of the witness as to whether it would have been practicable to remove the automobile and trailer from the snow bank without placing the wrecker on the highway. The trial court sustained an objection to this hypothetical question, on the ground that the subject matter of the inquiry was in the area of common knowledge, and did not call for expert opinion testimony.

Expert testimony is appropriate when the factual issue is one which jurors would not ordinarily be able to determine without technical assistance. E. L. Farmer & Co. v. Hooks, 10 Cir., 239 F.2d 547, 553. On the other hand,...