Hudson v. Stripling

• Decision Date: 24 June 1954
• Docket Number: 6 Div. 706
• Citation: 261 Ala. 196,73 So.2d 514
• Parties: HUDSON v. STRIPLING.
• Court: Alabama Supreme Court

Page 514

73 So.2d 514

261 Ala. 196

HUDSON v. STRIPLING.

6 Div. 706.

Supreme Court of Alabama.

June 24, 1954.

Jackson, Rives, Pettus & Peterson, Birmingham, for appellant.

Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.

STAKELY, Justice.

On May 18, 1952, Billie Gail Stripling suffered alleged personal injuries when the automobile in which she was riding as a guest turned over into a ditch on U. S. Highway 31 between Birmingham and Cullman, Alabama. Thomas Hudson was the driver of the car at the time. Riding also in the car was Nell Nichols, who married Thomas Hudson soon after the accident. Suit was instituted by Billie Gail Stripling for her alleged injuries by next friend William F. Stripling against Thomas Hudson et al., in a case designated on the docket of the Circuit Court of Jefferson County, Alabama, as Case No. 27951-X.

Suit was also instituted by William F. Stripling against Thomas Hudson et al., for damages suffered by him in connection with the foregoing accident including loss of services of his daughter, Billie Gail Stripling. This case is numbered on the docket of the Circuit Court of Jefferson County as Case No. 27952-X. These two cases on motion were consolidated and tried together in the court below. The suit brought by Billie Gail Stripling by next friend resulted in a verdict and judgment for the plaintiff for $15,000 and the suit instituted by William F. Stripling resulted in a verdict and judgment for the plaintiff for $5,000. The appeal of the two cases is on one record. The assignments of error appear separately in each case but the same errors are assigned by the same number in each case.

The first three assignments of error argued involve the qualification of jurors and matters which relate thereto.

The trial judge stated the names of the parties and the fact that the two cases, hereinabove referred to, were to be tried together. The court also stated the names of the attorneys representing the plaintiff and the names of the attorneys representing the defendant. The court then said:

'If either of you are related by blood or marriage to either of the plaintiffs or the defendant or to the lawyers or to any of the members of firms of lawyers or if you are employed by any of the parties or lawyers or if any of you are stockholders in or own a policy in or are employed by the State Farm Mutual Automobile Insurance Company, make it known. If you are a policy holder with the State Farm Mutual Automobile Insurance Company, what is your name?'

It was ascertained that there were nine prospective jurors on the regular panel and two prospective jurors among the extras who were policyholders of the State Farm Mutual Automobile Insurance Company, a mutual company. The court thereupon instructed the nine prospective jurors on the regular panel to take seats on the left side of the court behind the rail. After an off the record discussion between the court and counsel for the plaintiff, these jurors were instructed by the court to resume their former places, four in one box and five in another. After the court identified the entire venire, counsel for plaintiff was asked by the court if he wanted to ask any questions under the statute to which counsel replied that he did. The court instructed the jurors that the questions to be asked applied to all jurors. Counsel for the plaintiff then inquired if any of the prospective jurors knew Thomas Hudson, the defendant, or his father Ollie M. Hudson (owner of the automobile and also a defendant) or Floyd Prosch, a witness for the defense, or if they were acquainted with any member of the firm of attorneys representing the defendant.

Counsel for the plaintiff asked the jurors various questions as to whether or not they had any connection with the State Farm Mutual Automobile Ins. Co. or whether their relations ever had any connection with the aforesaid company. The response from the jurors indicated that there was no connection other than as a policyholder. Counsel for the plaintiff then asked:

'I would like to inquire if any policy holder here would feel that that would influence them in any way in a case which was brought in which the State Farm Automobile Insurance Company had any interest; do you feel like that would influence you in any way, the fact that you owned a policy with them?'

There was no response to this question, whereupon counsel for the plaintiff stated that they had no more questions to ask.

After counsel for defendant had interrogated the jurors, in response to a statement by the court that he was prepared to excuse four named jurors occupying one of the jury boxes, plaintiff's counsel challenged three of the four jurors named by the court, stating at the time that these were all of the jurors in the box which plaintiff desired to challenge. The three jurors so challenged were then excused by the court. Thereupon counsel for plaintiff stated to the court that plaintiff challenged five named jurors occupying the other box and the court thereupon excused the jurors so named. There were two extra jurors who stated that they had policies, but counsel for plaintiff stated that plaintiff did not care to challenge them. Thereupon the court filled the two jury boxes from the extra jurors and verified the names of those jurors occupying the two jury boxes and then inquired of the plaintiff as to whether or not plaintiff desired a struck jury. The jury was then struck and the jury to try the case was verified by the court. After the jury was so selected the rule as to witnesses was invoked by counsel for plaintiff and the witnesses were instructed by the court to retire to the witness room. Thereupon the opening statement of the case was made to the jury by counsel for both plaintiff and defendant. No exceptions were taken thereto by either party. Immediately after the court recessed for lunch.

At the start of the afternoon session and before the jury was brought into the courtroom, counsel for the defendant said to the court: 'Your Honor, may we show that this point was raised prior to the counsel for the plaintiff challenging any of the jurors because they were policy holders of the State Farm?', to which the court replied, 'Yes, sir.' Counsel for the defendant then said 'The defendant objects to counsel for plaintiff challenging for cause certain of the jurors who were brought down from the jury room to serve, or some--or from which a jury was to be struck, as being policy holders of the State Farm Automobile Mutual Insurance Company and not challenging all of the remaining jurors who admitted in open court that they were policy holders of the company, it being the position of the defendant that if the counsel for the plaintiff attempts to challenge any one of the prospective jurors who admits being policy holders of that company that they must challenge all of the remaining jurors who have admitted being policy holders and cannot reserve the right to strike from a panel on which they have left certain of the prospective jurors who were policy holders after they have challenged for cause other jurors who admitted being policy holders of that company.

'We think that action on the part of counsel for the plaintiff was highly prejudicial and improper and inconsistent in that if any one of them that have been challenged for cause which had an interest that would disqualify them from serving as jurors in a case, then, any other juror who also was a policy holder would have that same interest and also have that disqualification and would also disqualify them for cause.'

Counsel for the defendant further said:

'Judge, as a part of my objection, I want to introduce a copy of the jury list prepared by the Clerk of the Court for the week of September 28, 1953, and offer to show, and represent as an officer of the court that of the prospective jurors brought down, eleven of them, upon questioning by the Court, admitted that they were policy holders of the State Farm, and over our objections, counsel for the plaintiff were permitted, or will be permitted, to challenge approximately eight of the jurors, leaving three of the policy holders on the panel from which the jury was struck.'

Counsel for the defendant then said:

'You overruled, I presume?'

'The Court replied, 'Yes, sir.'

'Counsel for defendant then said, 'We except."

The first assignment of error reads as follows:

'The Court below erred in permitting counsel for appellee to interrogate jurors on voir dire in qualifying the jury as to insurance and then permitting counsel to omit striking from the jury for cause some of the jurors ascertained to be policy holders in the casualty insurance company insuring appellant against liability while striking others similarly situated from the jury.'

It is settled by the decisions of this court that the plaintiff is entitled to have the jury qualified as to their connection with or interest in a liability insurance company obligated under its policy issued to the defendant, to pay all or any part of any recovery which may be had against the defendant in the case. Verdenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So.2d 212; International Harvester Co. v. Williams, 222 Ala. 589, 133 So. 270. The qualification in the case at bar was correctly made by the trial judge. Cox v. Roberts, 248 Ala. 372, 27 So.2d 617.

Counsel for the plaintiff had the right to examine the jurors as to the nature and extent of their connection with the insurance company. In this connection, § 52, Title 30, Code of 1940, provides as follows:

'In civil and criminal cases, either party shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.'

There is no doubt that if any of the prospective jurors were interested in or employed by the...