Dunipace v. Martin

Citation73 Ariz. 415,242 P.2d 543
Decision Date31 March 1952
Docket NumberNo. 5369,5369
PartiesDUNIPACE v. MARTIN et al.
CourtSupreme Court of Arizona

Fred W. Fickett and Robert D. Stauffer, of Tucson, for appellant.

Moore & Romley, of Phoenix, for appellees.

DE CONCINI, Justice.

This appeal presents but one question for our determination, i. e., the propriety of asking prospective jurors questions phrased to determine whether they are in any way connected with an insurance company. Usually, such a question would only be propounded by plaintiff's counsel in the type of action where an insurance company might stand behind any liability for which the defendant would be found responsible.

Plaintiff, William S. Dunipace (appellant) as administrator of the estate of Theresa Mendibles, filed a civil action against Jerome P. Martin, then sheriff of Pima county, and his son Thomas C. Martin, a deputy sheriff, alleging in alternative counts that Theresa was killed due to the negligent operation of a county car driven by either the sheriff or his son (appellees). The Great American Indemnity Company, surety on the official bond of the sheriff, was named as a defendant.

Before starting voir dire examination, counsel for the plaintiff in the judge's chambers made three requests to the court, (1) that since he had reason to believe that one of the attorneys appearing for the Martins was representing a liability insurance company other than the named defendants which carried the liability insurance on the county car involved in the case, he wished that attorney to disclose the name of such company so he could 'interrogate the jury concerning said company'. This motion was denied by the court. (2) Counsel for plaintiff next requested the court to rule on the following question, which was to be asked the jury en banc: 'Are you, or any of you, ladies and gentlemen, stockholders, directors, officers, or employees, or interested in any insurance company issuing policies against liability for negligence?' The court denied permission to ask the question. (3) The third request was for permission to ask this question: 'Do you and your spouse, or either of you, carry liability insurance on your family car?', if previous examination had disclosed that they had a family car. The request was denied. Counsel maintained he was requesting the right to ask such questions solely for the purpose of intelligently exercising his clients' peremptory challenges and not to bring the possibility of insurance before the jury.

The cause of action alleging that the sheriff was driving was dismissed prior to submission of the case to the jury. The surety company on the sheriff's official bond received a favorable ruling on its motion for a directed verdict. The jury returned a 9-3 verdict in favor of the remaining defendants.

Plaintiff's contentions on this appeal are best expressed by the proposition of law supporting his three assignments of error. 'Provided counsel acts in good faith, he has the right to question prospective jurors on voir dire respecting their interest in, or connection with, liability insurance companies. Denial of this right is prejudicial error.'

There is no question that each party has a right to ascertain on voir dire examination whether jurors have any interest in the case which would influence their verdict. This rule is patent for the reason that each litigant is entitled to a fair and impartial jury.

The authorities are divided on the propriety of permitting counsel to ask such questions of prospective jurors. An excellent annotation is found in 4 A.L.R.2D 761, p. 792: '* * * All these considerations have been given due weight by the courts, and from their decisions it may safely be said that the following rule has been avolved: that, provided counsel acts in good faith, he may, in one form or another, question prospective jurors on the voir dire respecting their interest in, or connection with, liability insurance companies.'

The different states have all approved some form of questioning that may be used. A majority of the states allow counsel to ask the jurors questions such as were sought to be asked in the case at bar. We do not agree with the majority holding. Such questioning emphasizes to the jury that insurance is connected with the case in some manner. Emphasis on insurance may sway borderline jurors on the question of negligence and liability and might well tend to induce jurors to render excessive verdicts. Even in those states that allow questions which would elicit the name of the indemnitor insurance company, they are still careful to control the insurance factor, and careful scrutiny is given such cases on appeal to see whether the verdict is excessive. We are mindful of the general rule as set out in Salt River Valley Water Users Ass'n v. Berry, 31 Ariz. 39, 250 P. 356, 357: 'A stockholder in a corporation is incompetent to act as a juror in ...

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8 cases
  • E. L. Jones Const. Co. v. Noland
    • United States
    • Arizona Supreme Court
    • 19 Marzo 1970
    ...to call forth the conditioned response--'mistrial.' He must truly use his discretion.' Even in an earlier case, Dunipace v. Martin, 73 Ariz. 415, 242 P.2d 543, we 'The matter of calling to the jury's attention that defendant may carry insurance covering him for liability for his negligence ......
  • Santanello v. Cooper
    • United States
    • Arizona Court of Appeals
    • 28 Abril 1970
    ...Ketcham, 49 Ariz. 295, 66 P.2d 246 (1937); Northern Ariz. Supply Co. v. Stinson, 73 Ariz. 109, 238 P.2d 937 (1951); Dunipace v. Martin, 73 Ariz. 415, 242 P.2d 543 (1952); Sisk v. Ball, 91 Ariz. 239, 371 P.2d 594 (1962); E. L. Jones Construction Co. v. Noland, 105 Ariz. 446, 466 P.2d 740.3 '......
  • State v. Lamb
    • United States
    • Arizona Supreme Court
    • 25 Octubre 1984
    ...that at least he should be able to know the name of the client. Generally, the name of a client is not privileged. Dunipace v. Martin, 73 Ariz. 415, 242 P.2d 543 (1952); State v. Alexander, 108 Ariz. 556, 503 P.2d 777 (1972). In the instant case, however, the attorney, in order to properly ......
  • Evans v. Mason
    • United States
    • Arizona Supreme Court
    • 12 Marzo 1957
    ...to that condemned by the rule which forbids reference to the fact that a defendant carries liability insurance, citing Dunipace v. Martin, 73 Ariz. 415, 242 P.2d 543; and also Tom Reed Gold Mines Co. v. Morrison, 26 Ariz. 281, 224 P. 822. We do not see the applicability of the rule in these......
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