Fosness v. Panagos

• Decision Date: 07 December 1965
• Docket Number: Nos. 10,11,s. 10
• Citation: 376 Mich. 485,138 N.W.2d 380
• Parties: Harold FOSNESS, Plaintiff and Appellee, v. George PANAGOS and Anna Panagos, etc., Defendants and Appellants. Constance FOSNESS, Plaintiff and Appellee, v. George PANAGOS and Anna Panagos, etc., Defendants and Appellants.
• Court: Michigan Supreme Court

Page 380

138 N.W.2d 380

376 Mich. 485

Harold FOSNESS, Plaintiff and Appellee, v. George PANAGOS and Anna Panagos, etc., Defendants and Appellants.

Constance FOSNESS, Plaintiff and Appellee, v. George PANAGOS and Anna Panagos, etc., Defendants and Appellants.

Nos. 10, 11.

Supreme Court of Michigan.

Dec. 7, 1965.

Rehearing Denied Feb. 8, 1966.

Goodman, Crockett, Eden, Robb & Philo, by Dean A. Robb, Detroit, for plaintiffs and appellees. Sheldon M. Meizlish, Detroit, of counsel.

Sullivan, Sullivan, Hull & Ranger, by Robert E. Sullivan, Detroit, for defendants and appellants.

Before the Entire Bench.

BLACK, Justice (for reversal).

By the Constitution this Court is charged with the primary duty of establishment, modification, amendment and enforcement of the rules of practice in all Michigan courts (Const.1963, art. 6). Indeed, now that 'The judicial power of the state is vested exclusively in one court of justice' (Const.1963, art. 6, § 1), with respect to which the Supreme Court is general superintendent (Const.1963, art. 6, § 4), this is the place where the procedural buck finally stops. And since rules of practice like rules of substantive law are of value only to the extent of their enforcement by those who are responsible for such enforcement, today's simple question is whether this constitutionally appointed superintendent is to remain insistent upon honest and nonevasive respect for one of its peremptory and non-discretionary rules of practice; referring to the rule which, ever since 1929, was purposefully intended to ban the injection, in 'such original action,' of the element of liability insurance. See C.L.1929, § 12460; now section 3030 of the insurance code of 1956 (C.L.S.1961, § 500.3030).

Said section 3030 was formally adopted as a rule of practice in Darr v. Buckley, 355 Mich. 392, 94 N.W.2d 837. That case came to careful consideration and decision in 1959, prior to Justice Souris' appointment to the Court. As here in Fosness, Judge Gilmore of the third circuit presided over that jury trial. The judge on that occasion duly enforced section 3030 in the context of our instant controversy, that is, the voir dire examination of assembled and called veniremen. We affirmed his action, unanimously. At the same time suggestions were written into this Court's opinion whereby counsel seeking in good faith information he does not have, concerning the qualifications of summoned jurors, might obtain it without violating the rule and enduring the perils of such violation.

A year after Darr was handed down, that case was followed and applied (DeGroff v. Clark, 358 Mich. 274, 276, 100 N.W.2d 214, 215):

'It is evident that plaintiff's counsel requested and induced the court to direct the insurance question to the jurors, not for the purpose of eliciting information from them touching on their qualifications to sit as jurors, but for the purpose of conveying information to them about the existence of insurance in the case and influencing them thereby. The size of the verdict against the background of the record in this case would indicate that it did influence them. There is no need to review the law and previous decisions of this Court on the subject. Enough was said by Mr. Justice Black in Darr v. Buckley, 355 Mich. 392, 94 N.W.2d 837. See, also, Holman v. Cole, 242 Mich. 402, 218 N.W. 795, and Palazzolo v. Sackett, 245 Mich. 97, 222 N.W. 83. Decision therein is conclusive of a holding of reversible error here.'

Last year, in Felice v. Weinman, 372 Mich. 278, 126 N.W.2d 107, ¹ said section 3030 was enforced again, that time against a defendant and his counsel. So, for the cases before us, the skilled trial counsel for these plaintiffs must be taken as having known aforethought that any verdict or verdicts he might obtain below would be imperiled automatically by his conduct during the voir dire; conduct which was both unnecessary and flagrantly purposeful.

The record speaks from here. At chambers, prior to the voir dire and stimulated by certain pretrial motions 'to exclude' (see appendices II and III, post), Judge Gilmore warned counsel as follows:

'I will say, generally, to both counsel, so that we don't get into the possibility of a mistrial, if there are matters of law that could prejudice the jury, both of you are experienced enough to know that you should ask to have the jury excluded, and once it is excluded we can fully and completely settle the matter.'

Despite this, plaintiff's Counsel at no time sought leave to develop, during the voir dire the insurance-suggestive questions and answers which appear on juror Ada M. Bloom's 'personal history questionnaire.' See GCR 510.1. He just went ahead, bodaciously as presently quoted. ²

Mrs. Bloom was temporarily seated as juror No. 12. When his turn came Mr. Robb questioned her as follows:

'By Mr. Robb:

'Q. Mrs. Bloom, you were a teacher at one time, and now you are a housewife, is that correct?

'A. Right.

'Q. What does your husband do?

'A. He has an insurance agency, general insurance.

'Q. Where is this insurance agency located?

'A. Northville, Michigan.

'Q. What is the name of the insurance agency?

'A. C. Harold Bloom Agency.

'Q. What companies does he represent?

'A. I don't know.

'Q. Does he write automobile insurance?

'A. Yes; and fire.

'Q. For a number of different companies?

'A. Yes. Many.

'Q. Many different auto companies?

'A. No. Mainly, Auto Owners. But he does have others.

'Q. Would the fact that your husband is in the insurance business make you favor one side or another in this case?

'A. No, it would not

'Q. Have you had anything to do with the operation of the business?

'A. No.

'Q. Of taking reports?

'A. Nothing.

'Q. Your agency is out of your home then?

'A. Right.

'Q. The only thing you would be doing would be hearing your husband talk about his work?

'A. Occasionally.

'Q. Does he handle, in this agency, everything? If a policyholder has an accident, does he take the report?

'A. Yes.

'Q. And take care of it?

'A. He does no adjusting.

'Q. Not adjusting. But he takes care of the policyholders in all areas?

'A. Right.

'Mr. Robb: I have nothing further at this time.' ³

After the jury was sworn, but prior to commencement of the trial proper, defense counsel moved for a mistrial. The connected record again:

'The Court: You have a motion, I understand, Mr. Sullivan, that you 'Mr. Sullivan: Yes. The defendants in this case move for a mistrial on yesterday's voir dire examination of Juror Ada Bloom, No. 70, from box 3.

want to make before the jury is brought in?

'It developed that she was the wife of an insurance agent, and the interrogation by counsel for the plaintiffs went beyond what would be proper and permissive in the voir dire. The questions asked were designed not to obtain information, but to convey information that there were insurance companies involved in this matter, and the innuendo and the connotation was clearly that of an insurance company on the part of the defendants, contrary to the statute, because these questions were asked:

'What insurance companies did here husband represent? Did he sell automobile insurance? Was he involved in the sale of automobile insurance? And he asked a series of about eight or nine questions which I'm handicapped now to repeat verbatim because I do not have the record. But all of them were clearly designed to connote the idea that there was insurance involved in this automobile accident case.

'I feel certainly it went beyond what would be proper, and was designed to convey information and not obtain it from the prospective juror. We move for a mistrial.

'The Court: I remember the interrogation of the juror very well. I do not think that the question of insurance has been so injected in here that it would require a mistrial. I will deny the motion.

'Now, gentlemen, as I advised you earlier, Juror No. 12's father died last night, and we just have 11 jurors. We are in a situation where we have not had an opening statement yet, and I am willing to do any one of three things:

'First, proceed with 11 jurors; second, bring up a panel and impanel one juror to give us 12; or third, discharge this jury completely and impanel a whole new jury.

'It is my understanding, after the conversation that we have had, that it is agreed the way we will handle this is to impanel a 12th juror. Mr. Robb agrees to this, understanding that he has no peremptory challenges left; and Mr. Sullivan agrees, knowing he has only one peremptory challenge left.

'Is that agreed?

'Mr. Robb: Yes.

'Mr. Sullivan: Yes.'

As said above, the record speaks. It speaks of patently reversible error for calculated violation by counsel of both the letter and purpose of a simply worded and well known rule of trial couduct, and for complementing failure of the trial judge to enforce that rule as done by him in the Darr case.

To the above a fact of circumstantial significance should be added. The jury reported a total verdict of $20,000 for the two plaintiffs. That amount is the publicly well known rule of trial conduct, and for two or more causes arising out of the same accident, of the financial responsibility act (C.L.S.1961, § 257.504). The jury having been pretty well informed that an invisible defendant stood back of the defendants in a financial way, and yet being in the dark as to the amount of coverage, it is an eminently fair inference that the question of amount of the total verdict to be rendered was the primary subject of concern in the juryroom; also that such total was agreed upon in that room with view toward the statutory mininal and the consequent protection of the defendants from monetary loss. To which it is fair to add that said This brings today's inquiry to Justice Souris' assigned reasons for return to pre-Darr days of judicial irresolution; the days when our current issue was known as a 'vexatious subject.' (It never needed to be, as the years since handing down...