Franklin v. Tackett

Decision Date13 July 1993
Docket NumberNo. A93A0523,A93A0523
Citation433 S.E.2d 710,209 Ga.App. 448
PartiesFRANKLIN et al. v. TACKETT.
CourtGeorgia Court of Appeals

Kenneth L. Shigley, Atlanta, for appellants.

Tisinger, Tisinger, Vance & Greer, Thomas E. Greer, Douglas C. Vassy, J. Branson Parker, Carrollton, for appellee.

McMURRAY, Presiding Judge.

Plaintiffs brought this personal injury action against defendant seeking damages stemming from an automobile collision. Defendant denied liability and the case proceeded to trial. The jury returned a verdict in favor of defendant and judgment was entered accordingly. This appeal followed. Held:

1. The plaintiffs are black and defendant is white. There were three blacks on the jury panel and defendant used his peremptory challenges to strike each one of them. Plaintiffs made a Batson (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) motion and called upon defendant to explain why he struck all of the blacks on the jury panel. Defense counsel offered race-neutral explanations for striking two of the black potential jurors. With regard to the third black potential juror, defense counsel stated: "I don't know why I struck [her]. If I've got to come up with an excuse, I'm sure I could come up with an excuse. I might ask [plaintiffs' counsel] why he struck the people he struck. I resent it. I resent it that every time a black person is in court or in any place in this society, the first thing that comes to mind from people like [plaintiffs' counsel] is that there's something racial about a case, that there's something racially involved in the case. I resent it, I strongly resent it, I think the system ought to resent it, and I think your Honor ought to resent it. That's the only thing I have to say about this. I would ask that the Court reject his motion, whatever it is. I don't deal in those kind of things so I don't even know what kind of motion he's talking about."

Because defense counsel failed to give a race-neutral reason for striking the third black potential juror, plaintiffs urged the trial court to grant their Batson motion and declare a mistrial. The trial court denied the Batson motion, after first noting "that it was [plaintiffs' counsel] who injected race into this case" when he probed for bias during voir dire.

Plaintiffs assert the trial court erred in denying their Batson motion. We agree.

" '(C)ourts must entertain a challenge to a private litigant's racial discriminatory use of peremptory challenges in a civil trial.' (Emphasis supplied.) Edmonson v. Leesville Concrete Co., 500 U.S. 614, ---- (II B) (111 SC 2077, [2087, (II B) ], 114 LE2d 660) (1991). As the Supreme Court's grant of certiorari and remand in Chavous v. Brown, 501 U.S. 1202 (111 SC 2791, 115 LE2d 966) (1991), clearly demonstrate, the holding in Edmonson does not merely apply to civil actions in federal court. It applies equally to civil actions in state courts." Strozier v. Clark, 206 Ga.App. 85, 86(1), 424 S.E.2d 368.

"[Defendant] does not contend that employment of peremptory strikes against [all three of the] black potential jurors would not serve to establish a prima facie case of racial discrimination. 'Thus, the only remaining question is whether [defendant] sufficiently showed "that discriminatory purpose was not involved." (Cit.)' Gamble v. State, [257 Ga. 325, 326, 357 S.E.2d 792]." Strozier v. Clark, 206 Ga.App. 85, 87(3), 424 S.E.2d 368, supra.

We have no hesitation in concluding that defendant failed to show the lack of a discriminatory purpose. Why? Because defendant failed to give a " ' "clear and reasonably specific," explanation of his "legitimate reasons" for exercising the challenges.' Batson, supra [476 U.S. at 96-98, 98-99, and 98 (fn. 20), 106 S.Ct.] at 1723, 1724 and 1724 (fn. 20)." Gamble v. State, supra 257 Ga. at 327, 357 S.E.2d 792. In fact, defendant offered no explanation whatsoever for striking the third black potential juror. Defendant simply stated that he did not know why he struck that juror and resented being called upon to explain his challenges. That statement was wholly insufficient to successfully rebut plaintiffs' prima facie Batson case and the trial court clearly erred in ruling otherwise. Gamble v. State, supra; Strozier v. Clark, supra.

2. The trial court also erred in refusing to qualify prospective jurors with regard to relationships they may have with any insurance carrier having a financial interest in the outcome of the case. Weatherbee v. Hutcheson, 114 Ga.App. 761(1), 152 S.E.2d 715. Cf. Widener v. Mitchell, 137 Ga.App. 730, 732(5), 224 S.E.2d 868. Contrary to defendant's assertion, Denton v. Con-Way Southern Express, 261 Ga. 41, 402 S.E.2d 269 did not eliminate the practice of qualifying prospective jurors concerning their relationships with insurance carriers involved in a lawsuit.

Judgment reversed.

COOPER, J., concurs.

BEASLEY, P.J., concurs specially.

BEASLEY, Presiding Judge, concurring specially.

I concur fully in Division 1.

I concur in Division 2 because it applies the law. However, in my view, the qualifying question should not even be asked. A juror would not be biased or prejudiced by having some relationship with an involved insurer if the jurors did not know that an insurer has a financial interest in the outcome of the suit. It is an irrelevant question insofar as the issues and evidence in the lawsuit are concerned, as they will not draw insurance into question. See Denton v. Con-Way Southern Express, 261 Ga. 41, 42-43, 402 S.E.2d 269 (1991), and the authorities cited therein beginning with City Council of Augusta v. Lee, 153 Ga.App. 94, 99, 264 S.E.2d 683 (1980). 1

By asking the question, the subject of insurance is obliquely introduced into the lawsuit. If the suit is merely one by an injured party against an alleged tortfeasor, the jurors can surmise by the question that the insurer is defendant's. This may color the verdict. Of course, as pointed out in Weatherbee v. Hutcheson, 114 Ga.App. 761(1), 152 S.E.2d 715 (1966), the carriers of both parties may be involved, as in the event of a cross-action or subrogation. The jurors should not be given the opportunity to guess by the suggestive question. Even if their guess is accurate, the connection is irrelevant and should not be a factor in their deliberations.

Indeed, it has long been the law that "[i]n an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the mere existence of such contract is ground for a mistrial." Patillo v. Thompson, 106 Ga.App. 808, 809(1), 128 S.E.2d 656 (1962); Goins v. Glisson, 163 Ga.App. 290, 292(1), 292 S.E.2d 917 (1982). Yet we tell them during the jury selection process, indirectly but no less certainly, that the interest of an insurance company is at stake. To say that they are charged to confine their deliberations to the evidence ignores the impression already made.

The disqualification is based on the immutable principle that jurors must be omni exceptione majus, which means "above all exception." Black's Law Dictionary 1238 (Rev. 4th ed. 1968). The sine qua non of our American adjudication process is a fair and unbiased decision-maker, be it judge or jury. "A jury trial is a travesty unless the jurors are impartial." Atlantic Coast Line R. Co. v. Bunn, 2 Ga.App. 305, 306, 58 S.E. 538 (1907). No less now than in 1879, "A big part of the battle is the selection of the jury, and an impartial jury is the corner-stone of the fairness of trial by jury." Melson v. Dickson, 63 Ga. 682, 686(1) (1879).

So it was held over a hundred years ago, based on the common-law exclusion of all servants, that an employee of a defendant is properly rejected as a juror. Central R. Co. v. Mitchell, 63 Ga. 173, 179 (1879). As the court recognized in that case, "It is almost impossible, however incorruptible one may be, not to bend before the weight of interest. ..." Of course, in such instances the employee would know of the employer's interest because of its status as a party. The rule of exclusion of the employee of a party is a rule of safety "which recognizes the influence to which humanity is generally susceptible." Atlantic Coast Line R. Co., supra. In that case, the rule was applied to employees of plaintiff, the court pointing out that "[t]he employees of a plaintiff should be disqualified as jurors for the same reason that they would be if they were the employees of the defendant; and the employees of a person or partnership should be disqualified for the reason that would disqualify them if they were the employees of a corporation." Id. at 306.

City of Sandersville v. Moye, 25 Ga.App. 64(4), 102 S.E. 552 (1920), seems to be the first case which held that jurors are disqualified if they or their relatives are stockholders of a non-party company which had written a bond to indemnify defendant from liability.

The practice of qualifying jurors as to non-party insurers was followed in Bibb Mfg. Co. v. Williams, 36 Ga.App. 605, 607(1), 137 S.E. 636 (1927). The court acknowledged that evidence of liability insurance is inadmissible, "as being irrelevant and immaterial", and a mistrial should be granted if mere exclusion and appropriate instructions "can not disabuse the prejudicial impression created upon the jury." However, it went on to state, where defendant is insured, "the employees, stockholders, and relatives of stockholders of the insurance carrier are disqualified to serve as jurors in the case." As to the method of ascertaining this relationship, it was held not to be an abuse of discretion for the court to inquire whether any juror is an employee or stockholder of, or related to a stockholder of, the insurance company. This was followed in Farrar v. Farrar, 41 Ga.App. 120(1), 152 S.E. 278 (1930). This of course introduces the subject of insurance to all jurors; it does not simply ferret out those who might be disqualified. And therein lies the evil...

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