Hoagland v. Dolan

• Decision Date: 26 April 1935
• Citation: 259 Ky. 1
• Parties: Hoagland v. Dolan.
• Court: United States State Supreme Court — District of Kentucky

Page 1

259 Ky. 1

Hoagland v. Dolan.

Court of Appeals of Kentucky.

Decided April 26, 1935.

1. Trial. — Question on jurors' voir dire examination by counsel for plaintiff in personal injury suit as to whether any of them are employed by or interested in insurance company is proper only when asked in good faith with reasonable grounds to believe that defendant carries indemnity insurance, in which one or more of jurors are interested.

2. Trial. — Whether question on jurors' voir dire examination by counsel for plaintiff in personal injury suit as to whether any of them were employed by or interested in insurance company was asked in good faith to ascertain jury's suspected bias rests largely in trial court's discretion.

3. Trial. — Question on jurors' voir dire examination by counsel for plaintiff, in action for injuries in automobile collision, as to whether any of them were employed by or interested in insurance company held properly permitted as asked in good faith to ascertain jury's suspected bias, with reasonable grounds to believe that defendant carried indemnity insurance.

4. Automobiles; Damages. — Cause, nature, and extent of injury to plaintiff, riding in automobile which ran into ditch when driver attempted to pass defendant's automobile from rear, held for jury on conflicting testimony as to whether defendant negligently swerved to left, and whether plaintiff's injuries were serious and permanent.

5. Damages. — Verdict awarding married woman $3,100 damages for fractured ankle, torn ligaments, badly lacerated knee, and head wound, resulting in probably permanent lameness, constant pain, necessity of employing help to perform her household work, and expense of some $600 for necessary treatment of injuries, held not excessive.

6. Automobiles. — Statute authorizing substituted service of process on nonresident defendants in actions arising from their negligent operation of automobiles on state's highway does not violate due process provision of Constitution; state having power to impose reasonable, uniform regulations for use of highways by nonresidents, as well as residents, on same general footing (Ky. Stats. Supp. 1933, secs. 12-1 to 12-6; Constitution U.S. art. 4, sec. 2; Amend. 14).

7. Automobiles. — Statute authorizing substituted service of process on nonresident defendants in actions arising out of their negligent operation of motor vehicles on state's highways extends right to sue thereunder to nonresidents, as well as residents, of state (Ky. Stats. Supp. 1933, secs. 12-1 to 12-6).

Appeal from Scott Circuit Court.

GEORGE R. SMITH for appellant.

S.B. TRIPLETT for appellee.

OPINION OF THE COURT BY JUDGE PERRY.

Affirming.

On October 23, 1933, the appellant, John A. Hoagland, in company with his wife, was driving his car in Scott county, Ky., over United States highway No. 25, en route from his home in Celina, Ohio, to Florida. At the same time, the appellee, Mrs. Jane Dolan (plaintiff below), was traveling with other guests in the car of her husband, William A. Dolan, which he was driving from their home in Mt. Washington, Ohio, in the same direction and over the same highway, en route to Manchester, Ky. When a short distance from Georgetown, the county seat of Scott county, a collision is alleged to have occurred between the appellant Hoagland's car and that which Mr. Dolan was driving, in which plaintiff was at the time an occupant. By reason of this collision, alleged to have been caused by Hoagland's negligent operation of his car, Mrs. Dolan claims to have been seriously and permanently injured. Both the appellee, Mrs. Dolan, and the appellant, Mr. Hoagland (hereinafter referred to as plaintiff and defendant, respectively), were at the time of this accident non-residents of the state of Kentucky and residents of the state of Ohio.

To recover compensation for the personal injuries alleged to have been thus caused Mrs. Dolan by the collision, she brought this action, as a nonresident plaintiff, in the Scott circuit court for $25,000 against the nonresident defendant, Hoagland, under chapter 80, Acts 1930 (now sections 12-1 to 12-6, Carroll's Kentucky Statutes, 1933 Supplement), providing for substituted service of process upon nonresident defendants in civil suits arising out of the negligent operation of motor vehicles by nonresidents upon the highways of the commonwealth.

Notice of the suit and substituted service of process, with attested copy of the petition, were made upon the secretary of state, and other steps taken in full compliance with the provisions of the statute.

Special demurrer was filed, by which the defendant challenged the jurisdiction of the court in extending the benefit of the statute, providing for substituted service of process, to a nonresident plaintiff, especially where a resident of the same state as the nonresident defendant, upon the ground that in such instance the court of their own state was the proper tribunal for the determination of such personal injury claims.

The special demurrer being overruled, he filed a general demurrer to the petition, upon which a like ruling was made, whereupon, without waiving his exceptions to the court's adverse rulings upon his demurrers he filed an answer, wherein he traversed the averments of the petition, pleaded contributory negligence, and, further, pleaded that to hold the substituted service of process made upon him, under the circumstances stated, to be effective was in violation of his constitutional rights as offending the Federal Constitution, art. 4, sec. 2, and the Fourteenth Amendment thereto.

To this plea of the answer a demurrer was offered and sustained; also, a reply was filed, denying the answer's plea of contributory negligence.

The issues being thus joined upon the pleadings and proof heard in their support, upon submission of the cause, the jury, under the instructions of the court, returned a verdict in favor of the plaintiff for $3,100. Defendant's motion to set aside the verdict and for a new trial having been overruled, judgment was accordingly entered.

The defendant, challenging the propriety of this judgment, appeals and earnestly argues for its reversal: (1) That the trial court erred in permitting, over defendant's objection, a prejudicial voir dire examination of the jury; (2) that the verdict is flagrantly against the law and facts, and that the damages awarded were excessive; and (3) that the court erred in construing the provisions of sections 12-1 to 12-6 of the Statutes, providing for a substituted service of process upon non-resident motorists, as authorizing the bringing of actions thereunder in the state where both plaintiff and defendant are nonresidents of the state.

Addressing ourselves to these contentions thus presented, we will first consider that attacking the propriety of the trial court's ruling in permitting, over his objection, the plaintiff's alleged prejudicial voir dire examination of the jury. This objection is based upon the court's having permitted the plaintiff to ask upon his voir dire examination of the prospective jurors the following question: "Are any of you gentlemen at the present time employed by or interested in any insurance company whose business it is to insure automobiles against personal injury of the owner?"

The defendant at the time objected to the question, and moved that the jury be discharged and the case continued.

He contends that the question was flagrantly prejudicial to his rights, in that it was asked by plaintiff's counsel, not in good faith to ascertain any suspected bias of the jury, but to improperly get before it the information that the appellant was insured, and that such damages as it might allow plaintiff would be paid by some insurance company.

The question thus raised by this objection has been frequently before us for consideration, and wherein there has been clearly established the rule governing the proper or improper use of such character of interrogation upon the jury's voir dire examination. The court, in discussing this question in the early case of Dow Wire Works Co. v. Morgan, 96 S.W. 530, 533, 29 Ky. Law Rep. 854, said:

"If in the trial of a case counsel believes or has information that a juror is directly or indirectly interested in the result of a trial, he has a right to question the juror touching his interest. Neither the Civil Code nor statute defines what constitutes actual or implied bias on the part of jurors, or prescribes the inquiries that may be made to ascertain the juror's bias or interest; but it is well settled that the parties litigant have the right to a trial by a thoroughly impartial and disinterested jury, and consequently the privilege of making such inquiries as may be necessary to elucidate this fact."

However, the suggested limitation made in the opinion, that such character of interrogation should only be allowed counsel where employed in good faith in the belief that such bias might exist as to some of the jurors, was further emphasized, as one of controlling materiality, in the asking of such questions, in the later case of W.G. Duncan Coal Co. v. Thompson's Adm'r, 157 Ky. 304, 162 S.W. 1139, 1140, where the court said:

"We have recognized the propriety of such a question where counsel for plaintiff has information that the defendant has indemnity insurance, and that some member of the jury is interested in the insurance company, and the question is asked in good faith. Dow Wire Works Co. v. Morgan, 96 S.W. 530 ; Owensboro Wagon Co. v. Boling, 107 S.W. 264 . This privilege, however, is not only liable to abuse, but is frequently abused. * * * In view of the constant abuse of the privilege in question, we conclude that the question should never be asked unless asked in good faith, and the good faith of plaintiff's counsel will depend on whether or not he has reasonable grounds to believe that defendant carries indemnity insurance, and that one or more of the jurors...