Harris v. Snider

• Decision Date: 21 May 1931
• Docket Number: 5 Div. 80.
• Citation: 134 So. 807,223 Ala. 94
• Parties: HARRIS v. SNIDER.
• Court: Alabama Supreme Court

134 So. 807

223 Ala. 94

HARRIS v. SNIDER.

5 Div. 80.

Supreme Court of Alabama

May 21, 1931

Appeal from Circuit Court, Macon County; W. B. Bowling, Judge.

Action for damages for personal injuries by Ruth Snider against W S. Harris. From a judgment for plaintiff, defendant appeals.

Affirmed.

Denson & Denson and Jacob A. Walker, all of Opelika, for appellant.

Powell & Powell, of Tuskegee, and S. F. Hobbs, of Selma, for appellee.

BOULDIN J.

The suit was for personal injuries received in an automobile accident.

While preparing to strike the jury, plaintiff requested the court to qualify the jurors as to whether they were stockholders or employees of Maryland Casualty Company, or interested in said company. Defendant interposed objection, upon the ground that such qualification was improper, immaterial, and prejudicial. Thereupon the court stated: "I assume that there was insurance with this company"; then overruled the objection, and proceeded to so qualify the jurors. The request of plaintiff was in effect a motion invoking the action of the court.

The presence of a party in interest, though not of record, gives the opposite party the unquestionable right to have the juror qualified as to any interest on his part growing out of that situation. Automobile indemnity insurance against legal liability for injuries caused in their operation is a lawful business; may be said to be a favored business, affording needed protection to the injured as well as the insured under present day conditions. The right of the insurer to defend in the name of the insured defendant is recognized by law.

The only legitimate inquiry is legal liability vel non as between the parties to the accident. This court, in line with the jurisprudence of the country, condemns every effort to divert the issues from the true inquiry, and thus win from juries verdicts which would not be rendered between the parties before the court, imposing upon insurers burdens they have not assumed in their contracts, and tending in the end to increase insurance rates. With the rights of all parties in mind, this court has had occasion to consider with care the best procedure in such cases. When a motion is made to so qualify the jury, it must be regarded as made on the bona fide belief of responsible counsel that there is occasion to make such inquiry.

If there be no indemnity insurance, a matter directly within the knowledge of defendant and counsel appearing for him, this fact should be promptly declared. An issue, thus presented may be heard by the court upon evidence adduced by the parties. If there be no denial of indemnity insurance, no issue of fact thus presented, we have approved the practice of giving the incident as little prominence ' as may be and this by proceeding to qualify the jury and enter upon the trial of the merits of the cause.

We construe the suggestion of the trial court in this case, as intended to invite a denial, if no insurer was involved. Upon defendant keeping silent, an entirely proper course where no denial can be made, the trial court was without error in proceeding to qualify the jury as requested. If no objection to the motion had been interposed at all, it would have probably been the better course for the court to make no such suggestion.

These observations are to elaborate somewhat our former announcements. Beatty v. Palmer, 196 Ala. 67, 71 So. 422; Citizens', etc., Co. v. Lee, 182 Ala. 561, 62 So. 199; Gammill v. Culverhouse, 217 Ala. 65, 114 So. 800.

The complaint, alleging plaintiff was a "guest" of defendant in the car owned and driven by him, was not demurrable because stating the mere conclusion of the pleader. "Guest" is descriptive of a relationship known to the common understanding. Louisville & N. R. Co. v. Jones, 83 Ala. 377, 3 So. 902; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 244, 26 So. 349; Baker v. Elebash, 220 Ala. 198, 124 So. 739; Wurtzburger v. Oglesby (Ala. Sup.) 131 So. 9.

Special plea No. 3, a plea of contributory negligence, does not allege that the plaintiff, a passenger guest, had reason to believe the defendant driver did not know he was approaching the curve or would not discover same and slow down so as to safely turn the curve in the road.

Under plea No. 8, which went to the jury, the defendant had the benefit of any contributory negligence properly attributable to plaintiff for failure to give warning of near approach to the curve and bridge.

Under special pleas 4 and 5, defendant had the benefit of the defense sought to be set up in pleas 6 and 7. Whether termed "assumption of risk" or "contributory negligence" in going on the...