Gwin v. Church
| Decision Date | 14 September 1961 |
| Docket Number | 6 Div. 325 |
| Citation | 133 So.2d 880,272 Ala. 674 |
| Court | Alabama Supreme Court |
| Parties | Shirley Eugene GWIN v. Archie Calvin CHURCH. |
Dominick & Roberts, Tuscaloosa, and James L. Shores, Jr., and Donald L. Morris, Birmingham, for appellant.
Ralph Roger Williams and E. M. Ford, Jr., Tuscaloosa, for appellee.
The plaintiff, appellee, brought this action for damages for personal injury allegedly resulting from the negligence of defendant in driving his automobile into the automobile which plaintiff was driving on a public highway in Tuscaloosa County. Defendant filed pleas of recoupment seeking to recover for his own injuries and charging that the collision was caused by the negligence or wantonness of plaintiff. To the respective claims against them, the parties pleaded in short by consent the general issue with leave, etc., in the usual form. On the verdict of a jury, judgment was rendered in favor of plaintiff and defendant has appealed. The judgment overruling defendant's motion for new trial is assigned as error.
Defendant contends that he is entitled to a new trial for that the plaintiff repeatedly and improperly injected into the trial the fact that defendant was protected by insurance. The following excerpts from the record are substantially in chronological order. The numerals in parentheses indicate those instances where plaintiff's reference to insurance, as it appears to us, was clearly improper.
One. The record discloses that:
'(Counsel for the Plaintiff and counsel for the Defendant having both announced ready for trial, the attorneys for the defendant then gave to the trial Judge, out of the presence and hearing of the jury, a written memorandum showing Mutual Savings Fire and Auto Insurance Company as the indemnity or insurance carrier covering the risk involved in this law suit.)'
During qualification of the jury the following occurred:
'The Court: Are any of you officers, agents, servants, employees, stockholders or policyholders in the Mutual Savings Fire and Auto Insurance Company, a mutual company? If so, stand up. (None of the Jurors stood up.)
'Mr. E. L. Bolton: (A Juror) Pardon me, what was that question?
'The Court: Are any of you officers, agents, servants, employees, stockholders or policyholders in Mutual Savings Fire and Auto Insurance Company, a mutual company? If so, stand up. (None of the Jurors stood up.)
'The Court: Any other questions for the Plaintiff?
(1) 'Mr. Ford: We would like to know if any of the Jurors hold policies or stock in Mutual Savings Fire and Auto Insurance Company, a subsidiary of the Farm Bureau Insurance Company?
'The Court: I have just asked them concerning the Mutual Savings Fire and Auto Insurance Company?
(2) 'Mr. Ford: We would like to know whether any of them have policies or stock of Mutual Savings Fire and Auto Insurance Company, a subsidiary of Farm Bureau or Farm Bureau itself?
'The Court: Do any of you--Are you officers, agents, servants or employees----
'Mr. Dominick: We object to that question.
So far as this record discloses, neither the Farm Bureau Insurance Company nor Farm Bureau itself had any connection with this case. No reason has been shown for making this inquiry, either to determine the qualification of jurors or to inform plaintiff of possible bias so that plaintiff could intelligently exercise his right to strike.
Two. On further examination of the jurors, the plaintiff propounded a question to which defendant objected as shown by the following excerpt from the record:
'Mr. Williams: We would like to ask whether any members of the jury have a fixed opinion against finding a verdict against a Defendant that is covered by liability insurance.
'Mr. Shores: We object to that.
'The Court: Sustained.
'Mr. Shores: We move for a mistrial.
'The Court: Overruled.
'Mr. Shores: Except.'
Three. On cross-examination of plaintiff, counsel for defendant exhibited to plaintiff and placed in evidence a written statement bearing plaintiff's signature. Plaintiff admitted that when he was in the hospital, he had made the statement to Mr. John Rutledge. On redirect examination of plaintiff the following occurred 'Q. At the time Mr. John Rutledge came in there, did he tell you what his job was? A. He told me he was an insurance adjuster.
'Q. Did he tell you he was the insurance adjuster for the Mutual Savings Fire and Insurance Co.? A. He told me he was an insurance adjuster.
'Q. Did he tell you he was representing Mr. Guin and his insurance company? A. Yes, sir.
'Q. At the time you gave that statement, did Mr. John Rutledge offer to give you a copy of it? A. No, sir, I asked him for one. He said no dice.
'Q. Is that your handwriting? A. No.
'Q. Whose handwriting is it, if you know? A. It is the man that said he was Mr. Rutledge.
'Q. Have you ever seen John Rutledge before in your life? A. No, sir.
'Q. Did you ask Mr. John Rutledge to give you a copy of that statement? A. Yes, sir, I wrote him a letter to send me a copy.
'Mr. Dominick: We object.
'The Court: Sustained.
'Q. At the time you gave him the statement, did you ask him for a copy of it? A. Yes, sir, I am pretty sure I did.
'Q. What did he tell you?
'Mr. Dominick: We object. He said he was pretty sure.
'A. I was in the hospital. It is pretty hard to remember every little detail.
'Q. I know it is, but you must be certain.
'The Court: You can state what your best recollection is. Sustain the objection to it.
'Q. Did you ask Mr. John Rutledge for a copy of your statement that he took in the hospital while you were flat of your back? A. Yes, sir.
'Q. Did he give you one? A. No, sir.
'Q. Did you, subsequent thereto in writing, request----
'Mr. Shores: We object.
'Mr. Ford: Let me finish the question.
(3) 'Q. Did you, subsequently, in writing, on July 27, 1957, by letter in your own handwriting, ask the Mutual Insurance Company of Birmingham, Alabama to furnish you a copy of your statement?
'Mr. Shores: We object.
'The Court: Sustained.
'Mr. Ford: Your Honor, we offer to show that he did make such statement.
'Mr. Shores: We object; and ask for a mistrial.
'The Court: He has a right to make his offer to show, but I sustain the objection.
'Mr. Shores: We move for a mistrial.
'The Court: Overruled.
'Mr. Ford: I would like to show such request was made.
'Mr. Shores: We object.
(4) 'Mr. Ford: We offer to show such a request was made of the Mutual Fire Insurance Company, and that request was denied.
'Mr. Shores: We object.
'The Witness: This man by the insurance company----
'Mr. Shores: We object.
'The Witness: I'm not under the----
'Mr. Dominick: We object; it is highly prejudicial and is just trying to inject features in there that have no right in the case.
'The Court: Sustain the objection to the question and overrule the motion for a mistrial.
'Mr. Shores: Except.
'The Court: Sustain the objection.
'Mr. Shores: We object.
'The Court: Overruled.
'Mr. Shores: We object.
'The Court: Sustain the objection.
Four. On recross and further redirect examination of plaintiff the following appears:
On recross.
'Q. Did Hayes Aircraft--At Hayes Aircraft, did you have any hospital insurance to pay your hospital bill and doctor bill? A. They have a group insurance that paid some of it.
Q. They have a group insurance that paid some of it. A. Yes, sir.
'Q. Did you have Blue Cross Insurance? A. No, sir, it is something like Blue Cross; I don't remember the name right off.
'Q. Did it pay Druid City Hospital? A. I am pretty sure it did.
'Q. Did it pay Lloyd Noland Hospital bill in Birmingham? A. No, sir.
'Q. How much did it pay, if you know? A. I don't know off-hand. They have the bill here; you can check it and see.
'Q. Does the bill say how much is paid for? A. I don't know whether it does or not.
'Q. Have you gotten a bill at all showing how much more you owe, if anything? A. Yes, I have, but I don't have it with me.
'Q. In your best recollection, how much is that? A. The bill?
'Q. Yes, sir. A. I would say the bill is around $600.00.
'Q. What about the doctor bill? Did it pay the doctor bill? A. No, sir, not all of it.
'Q. You testified what those bills were. Please, tell us, in your best recollection, how much the balance is still owed on the doctor? A. Well, at the two hospitals, I believe the doctor goes in with the hospital. I don't know exactly. Whatever was paid was paid in an the whole bill. I don't know exactly what my balance is.
'Q. You say you believe it is around $600.00? A. It could be around $700.00. I don't remember exactly.
'Redirect Examination
'By Mr. Ford:
(5) 'Q. Mr. Church, I want to ask you did the defendant or Mutual Savings Fire Insurance Company pay any of the premiums?
'Mr. Dominick: We object.
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