Emery, to Use of Calvert Ins. Co. v. F.P. Asher, Jr., & Sons, Inc.

• Decision Date: 19 July 1950
• Docket Number: 193.
• Parties: EMERY, to Use of CALVERT INS. CO., Inc., et al. v. F. P. ASHER, Jr., & SONS, Inc.
• Court: Maryland Court of Appeals

75 A.2d 333

196 Md. 1

EMERY, to Use of CALVERT INS. CO., Inc., et al. v. F. P. ASHER, Jr., & SONS, Inc.

No. 193.

Court of Appeals of Maryland.

July 19, 1950

[75 A.2d 334] Page 335

Earl H. Davis, of Washington, D. C., and C. Maurice Weidemeyer, of Annapolis, for appellants.

Robert D Bartlett, of Baltimore, and William J. McWilliams, of Annapolis, for appellee.

Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.

COLLINS, Judge.

This is an appeal by Norman B. Emery and Lonnie E. Polson, two bricklayers plaintiffs below, from judgments for costs rendered on verdicts by a jury in favor of F. P. Asher, Jr., & Sons Inc., defendant below, appellee here, in automobile accident cases resulting in personal injury to appellants and property damage. The cases were tried together.

On January 8, 1949 the appellants were passengers in a Kaiser automobile being driven by Polson, and owned by Emery, on the Central Avenue road from the District of Columbia to Annapolis between 6:00 and 6:30 A.M. They planned to spend that day in a duck blind on the South River near Annapolis. At that time it was still dark. After the automobile had rounded a righthand curve in the road and had come onto a straight stretch in the highway the headlights showed an obstruction on the highway. This obstruction, with which their automobile collided, proved to be a tractor-trailer combination owned by the appellee, the rear end of which was against an embankment on the south side of the highway for the purpose of loading on the trailer a bulldozer for transportation to another location. The front of the tractor was facing north across the highway.

After each side had exhausted its four strikes and twelve persons were seated in the jury box, the appellants requested permission to examine the prospective jurors on their voir dire and, on refusal, submitted ten questions to be propounded to them. The trial judge personally asked the twelve prospective jurors two of the questions submitted, one being: 'Are you, or any members of your immediate family, employed by the defendant corporation?' The other question asked by the trial judge was: 'Do you know anything about the facts of this accident, either from personal knowledge or from having read of same in the newspapers?' The trial judge refused to ask the prospective jurors, as requested, whether they knew either of the plaintiffs; either of the counsel for plaintiffs; Mr. Asher, any of his sons, or other officers of the defendant corporation; or any of the counsel for the defendant. The trial judge also refused to ask them whether they were bricklayers by trade; whether they had participated in litigation arising out of motor vehicle collision, either as plaintiffs or defendants; whether any other reason suggested itself to them, which might embarrass them as jurors; and whether they could render a fair and impartial verdict, based upon the evidence alone, 'and the law as the court shall give it to you?' The appellants argue that these refusals constitute reversible error.

It has been definitely held by this Court that it is proper for the court to propound submitted questions to jurymen. Handy v. State, 101 Md. 39, 43, 44, 60 A. 452, 109 Am.St.Rep. 558; Whittemore v. State, 151 Md. 309, 312, 134 A. 322. Chief Judge Bond, in Whittemore v. State, supra, said, beginning, 151 Md. at page 313, 134 A. at page 323: 'This court, in Handy v. State, quoted several decisions in English and American courts, opposing examinations of jurymen which they characterized as speculative, inquisitorial, catechizing, or fishing, to aid in deciding on peremptory challenges, and definitely decided that this was improper. Judge Pearce, writing the opinion for the court, said: 'We are aware that there are decisions to the contrary in other courts of equal authority and reputation, but such knowledge as we possess of the experience in practice under those decisions does not commend them to our adoption,'--in this referring, presumably, to reports from other jurisdictions of seemingly unreasonable incumbering and prolongation of the work of securing a jury to proceed with trial. It is true, as counsel points out, that the court in Handy v. State held that whether the juryman questioned was or was not a married man was immaterial, so that the particular question asked was objectionable because of that fact, but that holding does not detract from the fact that the court decided that questions not specifically directed to some reasonable cause for disqualification, and so merely for peremptory challenge, should not be asked. And see Gillespie v. State, 92 Md. 171, 174, 48 A. 32.' The examination of a juror which a party is entitled to have made is for the purpose of ascertaining the existence of cause for disqualification and for no other purpose. Cohen v. State, 173 Md. 216, 224, 195 A. 532, 196 A. 819.

The appellants rely on the case of Alexander v. R. D. Grier & Sons Co., 181 Md. 415, 30 A.2d 757, 758. In that case the liquidator of Keystone Indemnity Exchange sought to enforce an assessment against a subscriber. The liquidator asked to examine the jurors on their voir dire on the question 'as to whether or not they, or any of their immediate families, are assessables in the Keystone Indemnity Exchange.' The trial judge refused the request. This Court, in reversing the case held that the fact that a prospective juror or a member of his immediate family was an 'assessable' in the Keystone would create bias or prejudice in the juror's mind. His financial interest 'would theoretically incline him in favor of recovery of verdict for the Liquidator'. On the other hand, he 'might feel that the whole plan of assessment was unjust and inequitable and his sympathy be with the defendant policy holder.' In either event the juror would not be impartial. In Morford v. United States, 339 U.S. 258, 70 S.Ct. 586, the panel for selection of jurors consisted almost entirely of government employees in Washington. The petitioner sought to examine these on their voir dire with reference to the possible influence of the Federal 'Loyalty Order'. The Supreme Court held that such an examination should have been permitted. See also Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 523.

The special questions which the trial judge here refused to propound to the jury do not appear, as appeared in the last two cases reviewed, to have been necessary for a fair and impartial trial to which, of course, the appellants were entitled, on the issues here presented. The questions refused appear to be more or less speculative or 'fishing' and such as not to test the eligibility of the prospective jurors. The appellants admitted during argument in this Court that they knew of no juror who sat in the case who would have been disqualified if the proposed questions had been asked. We cannot say that the trial judge abused his discretion.

During the trial appellant Polson testified as to the injuries received by him as a result of the accident in this case. In the declaration he alleged permanent injuries, future hospital and medical care and future loss of earnings as a union bricklayer. Doctors had been called by Polson who testified as to the extent of his injuries and doctors who had examined him were called by the defendant to testify as to the result of X-ray pictures taken of his back. Polson had called his employer as a witness who had testified the amount of time Polson worked prior to the accident and six months afterwards. Polson testified that from the date of his accident until March 23rd when his cast was removed he 'couldn't get around', when he laid down 'it hurt me'. In other words, testimony had been offered to show Polson's physical condition, as late as six months after the accident and even up to the time of trial, which he attributed to the accident. During his direct examination he testified that after receiving surgical treatment, the only physician other than Dr. Saracy who had cared for him was Dr. Pelland. Polson and his counsel at that time knew that Polson had been struck over the head by a pistol in February, 1949. On cross-examination Polson was asked whether he was treated by any other doctor in February, 1949. This was during the time he claimed disability. Appellant Polson objected to the question unless it was limited to injuries arising out of the automobile accident. The trial judge overruled the objection and Polson testifying as to that occurrence said that he was treated for cuts on his head when 'a fellow thought I owed him some money, and I didn't. So he tried to take my money, and I wouldn't give it to him. So he had his hand in his pocket, like this (indicating) and I though he had a gun. So I grabbed at him. Due to the fact that I had my cast on, I couldn't get around. He pulled a gun out and beat me across the head with it and had me down on the pavement. I couldn't get up.' He further said that these injuries did not aggravate the injuries sustained in the automobile accident. Appellant Polson claimed that the trial judge should not have allowed this evidence to be presented on cross-examination without requiring the defendant to make Polson his own witness for that purpose and that...