Harker v. Bushouse

• Decision Date: 23 April 1931
• Docket Number: No. 118.,118.
• Citation: 254 Mich. 187,236 N.W. 222
• Parties: HARKER v. BUSHOUSE et al.
• Court: Michigan Supreme Court

254 Mich. 187

236 N.W. 222

HARKER

v.BUSHOUSE et al.

No. 118.

Supreme Court of Michigan.

April 23, 1931.

Error to Circuit Court, Kalamazoo County; George V. Weimer, Judge.

Action by Paul Harker against John Bushouse and another. To review a judgment for plaintiff, defendants bring error.

Affirmed.

Argued before the Entire Bench. Jackson, Fitzgerald & Dalm, of Kalamazoo (Pulver & Bush, of Owosso, of counsel), for appellants.

Frank F. Ford, of Kalamazoo, for appellee.

BUTZEL, C. J.

Plaintiff for over twenty years had been engaged in selling shirts, hosiery, and underwear, etc., to his customers at their respective homes and offices in the city of Kalama zoo. His earnings amounted to $1,300 a year.

Shortly after dark on the afternoon of February 6, 1929, upon alighting from a street car on his way home, at the corner of Westnedge avenue and Walnut street, plaintiff claims he looked in both directions before proceeding from the street car tracks to the sidewalk. As he was nearing the curb, he was struck by an automobile belonging to defendant John Bushouse and driven by his seventeen year old son, defendant Isa Paul Bushouse. According to the record, there seems to be but little doubt that plaintiff's injuries were sustained through the negligence of defendants. It was admitted that the car was old and the lights so dim that the driver could not see over 60 feet ahead. The brakes were applied, but failed to work properly. This was due to the speed at which the car was driven over the pavement, covered with ice. No contributory negligence was shown on the part of plaintiff. The jury rendered a verdict of $5,000 in his favor.

Questions of the admissibility of the evidence are solely presented in the assignments of error. It is claimed that the answers to improper questions, timely objected to, affected the verdict. Plaintiff at the time of the accident was 75 years of age. He was suffering from some infirmities, including a disability and stiffening of the hip joints, slowness of locomotion, and then at times only with the aid of a cane. Nevertheless his general health was otherwise good, and he was able each day to go about unassisted and walk a long distance in order to visit his customers. The record leaves little doubt as to the seriousness, painfulness, and permanency of his injuries. Several ribs were broken, and his arm and wrist badly injured. He sustained compound comminuted fractures of both bones of the right leg just below the knee, and also other serious injuries resulting therefrom. He remained at the hospital for over five months, during a larger part of which time he suffered very acute pain. In addition to the roentgenologists, three physicians testified that plaintiff's condition was very serious. Two of them examined him shortly before the trial, almost a year after the date of the accident. They found that he was permanently disabled. At the time of the trial he was only able with the aid of crutches to move about the floor of the house in which he lived. He needed the support of others to get about. He required help to dress and undress. His right hand has only about one tenth of its former grip, due to the injury to the muscolospinal nerve. This may affect his use of crutches. The fracture of two ribs still caused him pain upon deep respiration or coughing. His right leg had almost ceased to function. It was very purple and swollen from the toes to the knee. The ankle joint could scarcely be moved, and the leg seemed almost lifeless. The medical testimony indicates that amputation may become necessary. There is but little doubt that plaintiff will continue to suffer severe discomforts, painful attacks, and possibly more serious consequences from his injuries. His earning capacity appears to be ended. The testimony shows that at the time of the trial his expectancy was 5.88 years. If the $1,300 he would have earned from the time of the accident up to that of trial, together with $759.42, the amount of the medical bills and hospital expenses, be added to the present worth of the expectancy, his financial loss would amount to $8,000 or thereabouts. This does not include any compensation for the extreme pain and suffering he endured and which may continue in an undetermined degree.

Defendants ask for reversal on two assignments of error, and that they be considered both separately and together, so that, if there is insufficiency in one, it may be supplemented by the other.

Upon the voir dire, the jury was asked whether they were members of the Citizens' Mutual Insurance Company of Howell, Mich. The question was at first improperly framed, but, after objection, propounded in correct form. There was no studied effort to repeat it nor was the question of insurance again referred to during the trial. It is unfortunate that the question of insurance should arise so frequently in trials of negligence cases. Undoubtedly the question may be a very important one. It is well known that many automobile drivers carry liability insurance. Some companies in the conduct of their large businesses have many officers and employees, some of whom may be summoned for jury service. Shares of stock in some of the companies may be held by potential members of a jury. Mutual companies do a very large business, and members thereof may be interested in the outcome of a case in which their company may be the real, though not the nominal, defendant. We have held in previous cases that, if the question of insurance is not brought into the case on the voir dire, examination for the purpose of influencing a jury, it is not reversible error. The entire question depends upon the good faith of counsel. Church v. Stoldt, 215 Mich. 469, 184 N. W. 469;Reynolds v. Knowles, 223 Mich. 70, 193 N. W. 900;Morris v. Montgomery, 229 Mich. 509, 201 N. W. 496;Sutzer v. Allen, 236 Mich. 1, 209 N. W. 918;Oliver v. Ashworth, 239 Mich. 53, 214 N. W. 85. It, however, will result in error if a question in regard to insurance is not asked in good faith but for the purpose of inflaming or prejudicing the minds of the jury. Holman v. Cole, 242 Mich. 402, 218 N. W. 795;Palazzolo v. Sackett, 245 Mich. 97, 222 N. W. 83.

Subdivision 6, § 33, chapter 2, part 3 of Act No. 154, Public Acts of 1929 (section 12460, Comp. Laws 1929), refers to provisions required in certain policies. Beginning with the twenty-second line of this section, it is provided as follows: ‘In such original action, such insurance company, or other insurer, shall not be made, or joined as a party defendant, nor shall any reference whatever be made to such an insurance company, or other insurer, or to the question of carrying of such insurance during the course of trial.’

We need not discuss the constitutional objection raised that this quoted provision is in no way referred to in the title of the act, nor need we consider whether it applies to the present case. We have repeatedly held that the Legislature may not interfere with the judicial power vested in the courts by the Constitution of this state. People v. Holschuh, 235 Mich. 272, 209 N. W. 158;Bielecki v. United Trucking Service, 247 Mich. 661, 226 N. W. 675;People v. McMurchy, 249 Mich. 147, 228 N. W. 723. The quoted provision, as far as it attempts to control judicial power, is void. The naming of an insurance company may become necessary on the voir dire. It would be better not to name it, and thus avoid the suspicion that it was done for the purpose of influencing or prejudicing the jury.

While we realize that in the present case the jury might have concluded from the question objected to that the Citizens' Mutual Insurance Company of Howell, Mich., was the real party defendant, we also are fully appreciative of the fact that plaintiff should have the right of inquiry to ascertain on the voir dire whether any members of the jury belonged to this organization. Had the question of insurance been further stressed, there would have been error which we could not overlook. While we are constrained to hold that there was no error in asking the question on the voir dire, we nevertheless again call attention of counsel to the case of Holman v. Cole, supra, where a proper method of interrogating the jury in regard to insurance on the voir dire is set forth. We also might suggest to the trial judges who so frequently examine the jury on the voir dire that they might make a brief statement calling attention to the fact that some automobile drivers do, and others do not, carry insurance; that under no circumstances should it make any difference whatever as to the outcome of the case whether such insurance is carried or not; that the judge...