Eagan v. O'Malley

• Decision Date: 02 May 1933
• Docket Number: 1790
• Parties: EAGAN v. O'MALLEY
• Court: Wyoming Supreme Court

21 P.2d 821

45 Wyo. 505

EAGAN v. O'MALLEY

No. 1790

Supreme Court of Wyoming

May 2, 1933

ERROR to District Court, Converse County; CYRUS O. BROWN, Judge.

Action by Carma C. O'Malley, a minor, who sues by Marie O'Malley, her next friend, against Dan Eagan. There was a judgment for plaintiff, and defendant brings error.

Affirmed on condition.

For the plaintiff in error, the cause was submitted on the brief of Durham & Bacheller, of Casper, Wyoming.

This controversy was before the court 2 P.2d 1063. It involves damages for alleged injuries in an automobile accident. Questions propounded to prospective jurors about liability insurance companies were prejudicial. Robinson v Woolworth Co., (Mont.) 261 P. 253; Wilson v Thurston Co., (Mont.) 267 P. 801; Pilkerton v Miller, (Mo.) 283 S.W. 455; Daniel v. Asbill, (Calif.) 276 P. 149; Stewart v. Brune, 179 F. 350; Jessup v. Davis, (Nebr.) 211 N.W. 190. The court permitted the plaintiff to disclose that defendant was insured. In a note following a report of the case in 56 A. L. R. 1418, the entire question is reviewed. Putnam v. Co., (Ore.) 130 P. 987, 45 L. R. A. (N. S.) 338. The court erred in its instructions to the jury with reference to the amount of damages recoverable. Gulfport Co. v. Kebbler, 94 So. 795; Ry. Co. v. Dennis, 91 So. 4; Hall Oil Co. v. Barquin, (Wyo.) 237 P. 255. The court instructed the jury upon matters not in issue, which was erroneous. Bird v. State, 36 Wyo. 532. The judgment of the trial court should be reversed and the cause remanded for a new trial. Additional citations of authorities submitted after argument, by defendant in error. A Michigan statute prohibiting any reference to be made to the fact of insurance was held void. Harker v. Bushouse, (Mich.) 236 N.W. 222. It is permissible to bring out the fact of insurance by cross-examination of defendant and witnesses. Nichols v. Owens Co., (Nebr.) 236 N.W. 169; Fuel Co. v. Damkmer, 52 F.2d 929, C. C. A. 4th Circuit; Jones v. Co., 40 S.W.2d 465; Smith v. Lammert, 41 S.W.2d 791; Walker v. Pomush, (Wisc.) 238 N.W. 859; Raines v. Wilson, (Ia.) 239 N.W. 36.

The cause was submitted for defendant in error on the brief of W. B. Cobb, of Casper, Wyoming, and Dawson & Daniels, of Douglas, Wyoming.

It is proper to interrogate a prospective juror as to whether he has interest in any insurance company. Robinson v. Woolworth Co., (Mont.) 261 P. 253; Daniel v. Asbill, (Calif.) 276 P. 149; Wayne Co. v. Snowden, 38 F.2d 599; Eppinger Co. v. Sheeley, 24 F.2d 153; see annotated note following 56 A. L. R. 1418 and 74 A. L. R. 849. Instruction numbered nine given by the court was proper. Hall Oil Co. v. Barquin, 33 Wyo. 92. Instruction numbered five given by the court was also correct. O'Malley v. Eagan, 43 Wyo. 233. Bird v. State, 36 Wyo. 532, does not seem to be in point. Almost the identical rule was applied as in the case at Bar, in Columbia Taxicab Co. v. Roemmich, (Mo.) 208 S.W. 859; Blashfield's Cyc. of Automobile Law, 416. The verdict is not excessive. A jury in Sheridan County in 1930, awarded plaintiff $ 7,700.00. Two years later a jury in Converse County awarded her $ 10,497.00. The trial court had opportunity to observe the bearing and demeanor of the plaintiff, and of her witnesses during the trial and refused to disturb the verdict, in over-ruling motion for a new trial.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

On the night of June 8, 1929, at a point approximately one mile east of the City of Casper, an automobile accident occurred in which Carma C. O'Malley, the plaintiff below, was injured. Dan Eagan, the defendant in the District Court, was the driver of the car in which she was then riding. She at first instituted litigation grounded on alleged negligence against both Philip S. Mahoney, the driver of the other car involved in the accident, and the said Eagan. Unable for the time to obtain service on the latter, the case was prosecuted on change of venue from Natrona County to its ultimate conclusion against Mahoney only--a verdict for her against him in the sum of $ 7,700, set aside on motion and judgment entered by the District Court of Sheridan County notwithstanding the verdict in Mahoney's favor, said judgment being affirmed by this court. Carma C. O'Malley, etc. v. Dan Eagan, et al., 43 Wyo. 233, 2 P.2d 1063; rehearing denied, 43 Wyo. 350, 5 P.2d 276, 77 A. L. R. 582.

Before the final disposition of the case just mentioned, the plaintiff had commenced another action in the District Court of Natrona County against Eagan wherein he answered and the case proceeded to trial in the District Court of Converse County, having been removed there on change of venue. This trial resulted, on May 9, 1932, in the verdict of a jury in favor of Miss O'Malley for $ 10,497, upon which judgment was duly entered. It is from that judgment that these proceedings in error have been prosecuted. The parties will hereinafter usually be referred to, the defendant in error as the plaintiff, and the plaintiff in error, as the defendant. As the facts relative to the accident were quite fully set out in the opinion appearing in the volume of the Wyoming reports cited above, it will be unnecessary to reiterate them here. Such matters as may be requisite to a proper understanding of the questions now submitted for determination will be mentioned in connection with their discussion.

In the voir dire examination of each member of the jury panel called to sit as a trial juror in the case, the District Court allowed counsel for the plaintiff to ask, over the objection and exception of the defendant, the following question:

"Do you have any interest, either as agent or representative or officer, in any insurance company writing policies of indemnity insurance, indemnifying persons or corporations against loss by reason of negligent operation of automobiles?"

This ruling is assigned and argued as error, it being said that the question propounded disclosed to the jury the fact that the defendant was insured against liability incurred by reason of the accident. So far as the language used in the interrogatory itself is concerned, undoubtedly it did not do this. However, the argument is presented that such a line of questioning tends to lead jurors to believe that an insurance company is in the background and will have to respond, under its contract with the defendant, to any judgment recovered. This suggestion reflects the notion, whether true or not, that jurors are inclined to be prejudiced against insurance companies and that when it becomes known that the defendant in a case carries insurance indemnifying him against loss, the action is less likely to be viewed on its merits by the triers of fact and they are more inclined to render a verdict for the plaintiff and in a larger sum than would be so were the defendant, an individual and not a corporation, obliged to bear the burden of the judgment alone.

Whether the defendant is insured against liability ordinarily has no relevancy to the issue of negligence and is erroneously received in evidence. Simpson v. Foundation Company, 201 N.Y. 479, 490, 95 N.E. 10; Ann Cas. 1912 B, 321; Wigmore on Evidence (2d Ed.), § 282 and cases cited. It is proper for the trial court, in the exercise of a wise discretion, to guard against the injection of such an element into the case, both on account of its irrelevancy and because of the notion mentioned above, in order that litigants may have their controversies determined with the utmost impartiality. A comprehensive examination of reported cases shows that, in many instances, the courts have ordered a mistrial or, on appeal, a reversal, where counsel have improperly placed before juries the fact that the defendant is protected by indemnity insurance. The rule should be, as we think, that when counsel's conduct and his questions in the case are fairly conducive to the accomplishment of a legitimate end in the proceedings, if, incidentally, prejudice results therefrom to the adverse party, it may not be avoided. When, however, his conduct and inquiries pass the bounds of serving that legitimate purpose, it should then be the duty of the trial court to interfere and, if that is not done, the matter should be appropriately dealt with on review. Obviously, all parties interested in a controversy are, in advance, aware of the various steps the law prescribes that the course of a trial shall take and they enter upon it knowing just what procedure may be expected.

The examination of jurors on voir dire, when properly conducted, as all members of the profession know, serves a useful purpose in selecting triers of fact. Among other things, it enables both parties, plaintiff and defendant alike, to know the relationship, if any, existing between any juror and a party who, though he may not appear so of record, is still a party in interest. Litigants should be given reasonable opportunity to make inquiries which will disclose such relationships and thereby be enabled to intelligently exercise their right of challenge as to prospective jurors and thus to secure the impartial and disinterested jury which the law contemplates.

As a result of an extended examination of the cases dealing with the question, we consider it easily deducible that the great weight of authority and the better reasoning alike sanction the view that counsel for the plaintiff is entitled in good faith to inquire whether any juror is interested in or connected with any insurance or casualty company that may be interested in the case as an insurer of the defendant's liability. See 35 C. J. 394; 56 A. L. R. 1454, note; 74 A. L. R. 860, note. Some of the more recent cases approving this rule--all decided during the year 1932--are: ...