Fulcher v. Pine Lumber Co.

• Decision Date: 17 March 1926
• Docket Number: 155.
• Citation: 132 S.E. 9,191 N.C. 408
• Parties: FULCHER v. PINE LUMBER CO.
• Court: North Carolina Supreme Court

132 S.E. 9

191 N.C. 408

FULCHER v. PINE LUMBER CO.

No. 155.

Supreme Court of North Carolina

March 17, 1926

Appeal from Superior Court, Craven County; Bond, Judge.

Action by Albert Fulcher against the Pine Lumber Company. Judgment for plaintiff, and defendant appeals. No error.

Attorney's inquiry as to juror's relation to association or corporation indemnifying adverse party for loss by reason of adverse verdict is not in itself reversible error.

Whether question whether juror is agent of defendant's insurer is asked in good faith, or defendant has been prejudiced thereby, is for trial judge to determine in his discretion.

Action to recover damages for personal injuries, sustained by plaintiff while at work as an employee of defendant. The issues, with answers thereto, were as follows:

(1) Was plaintiff injured by the negligence of the defendant company as alleged in the complaint? Answer: Yes.

(2) Did the plaintiff by his own negligent conduct contribute to and cause his said injury? Answer: No.

(3) What damages, if any, is the plaintiff entitled to recover? Answer: $5,000.

From judgment on this verdict, defendant appealed to the Supreme Court.

Moore & Dunn, of Newbern, for appellant.

D. L Ward, of Newbern, for appellee.

CONNOR J.

Defendant's first assignment of error is based upon an incident occurring during the trial, and stated in the case on appeal as follows:

"The plaintiff, in examining the jury, asked the question: 'Is there any member of the jury in the employ of the Thomas Masten Indemnity Insurance Company or Association?"'

When the question was asked the judge called the attorneys for plaintiff and defendant to the bench, and, in an undertone, not heard by the jury, asked why plaintiff's attorneys desired to ask the question. Plaintiff's attorneys, in an undertone, not heard by the jury, said to the judge that Mr. Asa, agent of the Thomas Masten Indemnity Association, a mutual concern composed of lumber manufacturers, and then present, had tried to settle the case with them, and had stated to them that his association had insured defendant against loss in cases of this kind, and that Mr. Aberly (manager of defendant company) had also said the defendant was a member of the Masten Association, and that plaintiff's attorneys desired to ascertain if any member or agent of the association was on the jury. His honor decided that the question was asked in good faith.

The defendant objected. Objection overruled, and defendant excepted. It does not appear whether any of the jurors answered the question or not. Therefore, the question as to whether or not an affirmative answer to the question by a member of the jury would have been ground for a challenge for cause is not presented. His honor held only that the question, asked in good faith, was not subject to objection. There was no motion by defendant for any instruction to the jury, relative to the matter, then or thereafter during the trial, or for a continuance on the ground that the question was an intimation, at least, to the jury, by plaintiff's attorneys, that defendant was protected by indemnity insurance against any damages which it might have to pay to plaintiff by reason of the verdict in this case. Having been informed by both the manager of defendant company and the agent of the indemnity association that the association and not the company, by reason of the contract of insurance, would pay such damages as plaintiff might recover, attorneys for plaintiff not only had the right, but it was also their duty, to ascertain by questions addressed to jurors tendered to plaintiff what relationship, if any, existed between members of the jury and the association, which was interested in the verdict. The fact that a juror was an agent or member of the association which would ultimately pay the damages assessed by the jury, if any, would affect the competency of the juror to serve in this case; it would have weight with the attorneys for plaintiff, at least, in determining whether they should challenge the juror peremptorily.

In Blevins v. Cotton Mills, 64 S.E. 428, 150 N.C. 493, it is held that an employee is not a competent juror for the trial of a cause involving the rights or interests of his employer. In Norris v. Mills, 70 S.E. 912, 154 N.C. 474, it is held that it is proper for the attorney for plaintiff, in good faith, to ask jurors as to their relationship, if any, to a casualty company, where it is admitted that the defendant is insured by the casualty company, with respect to the damages which plaintiff is seeking to recover in the action. See, also, Walters v. Lumber Co., 81 S.E. 453, 165 N.C. 389, and Oliphant v. Railroad, 88 S.E. 425, 171 N.C. 304. In Lytton v. Mfg. Co., 72 S.E. 1056, 157 N.C. 332, Ann. Cas. 1913C, 358, it is said that-

"Evidence that the defendant in an action for damages arising from an injury is insured in a casualty company is entirely foreign to the issues raised by the pleadings and is incompetent. By some courts it is held to be so dangerous as to justify another trial, even when the trial judge strikes it from the record."

It is said, however, in Bryant v. Furniture Co., 119 S.E. 823, 186 N.C. 441, that where the fact that defendant charged with negligent injury of plaintiff held a policy of indemnity insurance against damages which might be recovered for such injury is brought out on the trial merely as an incident on cross-examination or otherwise, it will not always or necessarily constitute reversible error. See Gilland v. Stone Co., 128 S.E. 158, 189 N.C. 783; Allen v. Garibaldi, 123 S.E. 66, 187 N.C. 798; Davis v. Shipbuilding Co., 104 S.E. 82, 180 N.C. 74. Also, Deligny v. Furniture Co., 86 S.E. 980, 170 N.C. 189; Starr v. Oil Co., 81 S.E. 776, 165 N.C. 587; Featherstone v. Cotton Mills, 74 S.E. 918, 159 N.C. 429.

[1-7] We cannot hold, where an attorney for a party to an action in the performance...