Holman v. Cole, No. 106.

• Court: Supreme Court of Michigan
• Writing for the Court: SHARPE
• Citation: 218 N.W. 795,242 Mich. 402
• Docket Number: No. 106.
• Decision Date: 03 April 1928
• Parties: HOLMAN v. COLE.

242 Mich. 402
218 N.W. 795

HOLMAN
v.
COLE.

No. 106.

Supreme Court of Michigan.

April 3, 1928.

Error to Circuit Court, Houghton County; John G. Stone, Judge.

Action by Earl B. Holman, administrator of the estate of Earl Bree Holman, Jr., deceased, against William C. Cole. Judgment for plaintiff, and defendant brings error. Reversed, and new trial ordered.

Argued before NORTH, FELLOWS, WIEST, CLARK, McDONALD, BIRD, and SHARPE, JJ.

[218 N.W. 796]

M. J. Doyle, of Menominee, and Derham & Derham, of Iron Mountain (Bulkley, More, Poynton & Overmyer, of Chicago, Ill., of counsel), for appellant.

B. H. T. Burritt, of Hancock, for appellee.

SHARPE, J.

This action was brought under the survival act (Comp. Laws 1915, § 12383) by plaintiff, as administrator of the estate of his deceased son, a boy six years old, to recover the damages incident to his injury and death. On August 14, 1926, the deceased was sitting in his father's car, not then in motion, on the side of the road. The defendant was driving his car from the opposite direction, and, when near the car in which the deceased was sitting, it swerved and struck the other car, causing injuries to the deceased from which he died about 24 hours thereafter. He had verdict and judgment for $12,708.33. Defendant seeks review by writ of error.

1. Counsel for the plaintiff was permitted to ask each juryman on his voir dire examination the following question:

‘Are you in any way interested as a stockholder or otherwise in the New Amsterdam Casualty Company?’

In overruling defendant's objection the court said:

‘You are aware that the Supreme Court has held in two or three cases that this is a proper question to ask if it is not pursued any further.’

It is a fact of which we cannot but take judicial notice that, in cases where jurors obtain information that the damages as fixed by them will be paid by insurance companies, the amount thereof is usually greatly enhanced. We have here a verdict for more than $12,000, allowed in most part for loss of future earnings. There is little in the record to indicate that any considerable amount of this was allowed for paid and suffering. Had he lived, it would have been 15 years before he would have begun to earn anything for himself. The court very properly instructed the jury that their allowances for losses of future earnings ‘are to be reduced by you to their present worth.’ Without entering into a computation it is apparent that, if this instruction was followed, the allowance before reduction would have been a sum in excess of $20,000. Contrasting the verdict with that allowed by juries in many cases where the defendants are individuals, we cannot but infer that the amount of this verdict was largely increased by the information conveyed to the jury by the questions asked.

We have examined the cases relied on by the court and by counsel for plaintiff to sustain the statement that this court has held that a similar question to that asked is a proper one. We cannot so find.

The statute (3 Comp. Laws 1915, § 14565) provides that:

‘No judgment or verdict shall be set aside or reversed, * * * unless, * * * it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.’

In our efforts to comply therewith, we have frequently held that unless it appears that the verdict was affected by consideration of the fact that defendant was protected by insurance, or that the amount allowed was enhanced thereby, reversal will not be had. The test which we think should be applied is: Was plaintiff's counsel acting in good faith and without intention to secure

[218 N.W. 797]

advantage to his client in injecting into the case the fact that defendant was carrying insurance?

In Link v. Fahey, 200 Mich. 308, 166 N. W. 884, it was said:

‘The record is barren of anything tending to show that the inquiry was prosecuted in bad faith.’

In Ward v. De Young, 210 Mich. 67, 177 N. W. 213, we were unable to say ‘that plaintiff's counsel was intentionally seeking to get the fact that such insurance was carried before the jury.’ In Church v. Stoldt, 215 Mich. 469, 479, 184 N. W. 469, 472, it was said:

‘We are not satisfied that the questions complained of were not asked in good faith to enable plaintiff's counsel to intelligently exercise his right of peremptory challenge.’

In Morris v. Montgomery, 229 Mich. 509, 512, 201 N. W. 496, 497, it said that ‘the rule of exclusion’ of such questions ‘ought not to be employed to set aside judgments except in cases of flagrant violation.’ In Greenwold v. Faber, 234 Mich. 217, 207 N. W. 911, the court said:

‘It cannot be said that plaintiff's counsel deliberately brought this subject into the case for the purpose of prejudicing the jury.’

In Sutzer v. Allen, 236 Mich. 1, 209 N. W. 918, the fact that defendant was insured appeared in a statement made by him. The verdict was but $1,500. Reversal was denied because it did not appear that improper use was made of the fact of the insurance, ‘thereby increasing the size of the verdict.’ The holding of Chief Justice Bird in that case was quoted with approval in Oliver v. Ashworth, 239 Mich. 53, 56, 214 N. W. 85, no claim was made that the verdict was excessive. In all of these cases...