A. J. Miller Trucking Co. v. Wood, 585

• Decision Date: 16 December 1971
• Docket Number: No. 585,585
• Parties: A. J. MILLER TRUCKING COMPANY, Inc., et al., Appellants, v. Luther W. WOOD, Appellee.
• Court: Texas Court of Appeals

Page 763

474 S.W.2d 763

A. J. MILLER TRUCKING COMPANY, Inc., et al., Appellants, v. Luther W. WOOD, Appellee.

No. 585.

Court of Civil Appeals of Texas,

Tyler.

Dec. 16, 1971.

Rehearing Denied Jan. 6, 1972.

Strasburger, Price, Kelton, Martin & Unis, Royal H. Brin, Jr., Robert L. Hoffman, Dallas, for appellants.

Smith, Johnson & McDowell, Howard S. Smith, William McDowell, Sulphur Springs, for appellee.

McKAY, Justice.

This suit was brought by appellee, Luther Wood, for personal injuries resulting from a motor vehicle collision on May 21, 1970. Appellant admitted liability and only the issues of the amount of damages were tried before a jury. In answer to the damage issues, the jury found the following amounts of damages: past pain and anguish, $11,000; future pain and anguish, $4,000; past lost earnings, $1,600; future lost earnings, $32,000; doctor's, medical and hospital bills, ambulance, orthopedic equipment and nurses' services, $3,100; and diminution in value of plaintiff's truck, $450 . The trial court entered judgment for appellee based on the verdict.

By appellants' fourth point, it is contended that the trial court erred in allowing appellee's counsel to ask the jury panel whether any of them were engaged in adjusting claims, had written any insurance, or were connected with the insurance industry for the reason that insurance was thus improperly injected into the case.

By appellants' fifth point, error is claimed by the trial court for overruling appellants' motion for mistrial based on the voir dire examination by appellee's counsel of the jury panel as set out in point four.

Appellants filed a second motion in limine before the jury was examined in which the court was asked to instruct counsel for appellee to refrain during voir dire examination from inquiring of any juror or jurors as to any connection with the insurance industry, and that counsel could ask any juror his occupation, past or present, and the occupation of members of his family to determine whether any of them had any insurance industry connection. The trial court denied this motion.

During voir dire examination of the entire jury panel, appellee's counsel asked the following questions:

'Have any of you on the jury panel ever been, or are you now, connected with the insurance industry in any way? In this group here (indicating)? Any of you do any adjusting for any insurance company? (NO SHOW OF HANDS).

'Have any of this group (indicating) written any insurance--write? Any over here (indicating)? (ONE HAND).

Anybody else over here connected with the insurance industry in any way?

'Mr. McCorkle, the fact that you write insurance, that wouldn't affect your verdict either way in the trial of this case, or not? You'd only know.'

The juror answered: 'Not that I know of.'

Later, appellee's counsel returned to the jury panel member, McCorkle, and asked: 'You told us you were in the insurance business here,' and followed with questions on other matters.

Appellants filed a motion for mistrial alleging the voir dire examination of the jury panel by appellee's counsel injected insurance into the case and that such was improper and highly prejudicial to appellants, and asked that the panel be discharged and a new panel summoned and that appellee's counsel be instructed not to ask such questions in the future. The motion was overruled by the court with a qualification that '* * * Defendant's counsel made no objection during any of the statements made by counsel for Plaintiff during the jury examination regarding the insurance industry, whether they adjusted, did not make any objection to it at that time, and made no Motion for Mistrial at the end of the voir dire examination but waited until the jury had been selected, sworn in and instructed before such motion was presented to the Court.'

Appellants rely upon Brockett v. Tice, 445 S.W.2d 20 (Tex.Civ.App., Houston 1st, 1969, writ ref., n.r.e.), and upon Johnson v. Reed, 464 S.W.2d 689 (Tex.Civ.App., Dallas, 1971, writ ref., n.r.e.), as authority that insurance was improperly injected into the case. In Brockett, which was a personal injury damage suit, appellee's attorney, in his voir dire examination asked 'whether any juror had any connection with any insurance company.' Appellant's counsel objected and excepted, but did not ask for a mistrial. The trial court sustained the objection and instructed the jury not to consider it, and instructed counsel to abandon that line of questioning and not to go into insurance any more. Shortly afterward, appellee's counsel asked the panel 'whether any of them thought that a verdict in this case would affect their insurance rates.' Appellant's motion for mistrial was denied. The court did, however, instruct counsel in the presence of the panel that insurance was not an issue in the case and not to refer to insurance .

On the point concerning appellee's attorney asking the panel 'whether any juror had any connection with any insurance company,' the court said:

'Appellee's basic position is that he had a right to ask the questions of the panel that are set out in the formal bill of exception, because he was entitled to obtain information from which it could be determined whether a juror was disqualified in the case on trial because of bias or prejudice. We might add that an attorney is entitled to obtain information to aid him in determining whether to exercise a peremptory challenge. Too, it is appellee's position that if the mentioning of insurance was error it was harmless error.

'We are of the view that the effect of appellee's counsel asking the jury panel if any of them had any connection with any insurance company was to convey the impression that appellant had insurance. The question was knowingly and deliberately asked by counsel, as shown by his brief and in oral argument before this Court on the theory that he was entitled to get this information as a base for further questioning as to whether this would cause bias or prejudice on the part of the juror. This was error. There are other ways of questioning which can develop this fact without asking the question in that form before the whole panel.'

In Brockett, the appellee later made an unresponsive answer that his employer told him he had insurance and a motion for mistrial was again overruled with instructions from the court to the jury. The judgment for appellee (plaintiff) was reversed.

In Johnson, also a personal injury damage suit resulting from an automobile collision, appellant complained of the trial court's action in refusing to permit appellant's counsel to question the panel in good faith, regarding any possible connection any panel member or his family, friends or associates had with the insurance industry.

The trial court had sustained a motion in limine that appellant's counsel not introduce any evidence, or in any way advise the jury by innuendo or otherwise concerning the possible existence of liability insurance. Appellant's counsel then stated to...