Krupp v. Poor

• Decision Date: 16 December 1970
• Docket Number: No. 69-465,69-465
• Citation: 53 O.O.2d 320,24 Ohio St.2d 123,265 N.E.2d 268
• Parties: , 53 O.O.2d 320 KRUPP, Appellant, v. POOR et al., Appellees.
• Court: Ohio Supreme Court

Page 123

24 Ohio St.2d 123

265 N.E.2d 268, 53 O.O.2d 320

KRUPP, Appellant, v. POOR et al., Appellees.

No. 69-465.

Supreme Court of Ohio.

Dec. 16, 1970.

Syllabus by the Court

1. All questions in the voir dire examination must be propounded in good faith. The character and scope of such questions cannot become standardized, but must be controlled by the court in the exercise of its sound discretion, the court having for its purpose the securing to every litigant an unbiased jury. (Paragraph three of the syllabus of Dowd-Feder v. Truesdell, 130 Ohio St. 530, 200 N.E. 762, approved and followed.)

2. Judicial discretion is the option which a judge may exercise between the doing and not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.

3. It is not an abuse of judicial discretion to prevent inquiry of prospective jurors concerning their own or their immediate family members' connection with, interest in, or relationship to a casualty insurance company in an intentional tort case in which defense counsel informed the court prior to this examination and out of the presence and hearing of the jurors that one defendant was uninsured and the other defendant was insured.

4. Where the trial judge exercised judicial discretion in refusing to allow plaintiff's counsel to propound the usual 'insurance' questions on voir dire to the prospective jurors and the unsuccessful litigant does not show that by reason of such ruling a biased jury was obtained, the trial judge did not abuse his discretion, and, therefore, such ruling must be affirmed on appeal.

Plaintiff-appellant Frank S. Krupp, instituted this action against defendants-appellees, Stearns Poor and his employer, Fullerton Transfer and Storage Limited, Inc., to recover damages for personal injuries alleged to have been the proximate result of an assault and battery upon plaintiff by defendant Poor while acting within the scope of his authority as agent for defendant Fullerton Transfer.

After the trial court and made a statement of the issues and examined the jurors and before they were examined by counsel, the defendant made a motion out of the jurors' presence and hearing '* * * to eliminate and restrain the plaintiff or his counsel from making any statements regarding insurance or casualty insurance companies during the voir dire for the reason that one of the defendants * * * Poor is uninsured.' In answer to an inquiry by the court, counsel for defendants then stated that the employer defendant was 'insured by a casualty company.' Defendants' motion was sustained.

Plaintiff's counsel stated that he 'would like to proffer into the record the following questions which would have been asked had plaintiff been permitted, and that is:

'1. Whether any of you, as jurors, are employed by a casualty insurance company?

'2. Are any of the members of your immediate family employed by a casualty insurance company?

'3. Do you or any of you have any ownership or interest in a casualty insurance company?

'4. Do any immediate members of any of your families have any ownership in a casualty insurance company?'

At the conclusion of the evidence, other than that relating to damages, the trial court submitted four special verdicts to the jury. The first was 'Did defendant Poor commit an assault and battery on the person of the plaintiff on June 3, 1966, as plaintiff claims?' The jury unanimously answered this special verdict: 'No.' The third special verdict read: 'Was defendant Poor an agent of defendant Fullerton, Inc., on June 3, 1966?' All twelve jurors answered this special verdict: 'Yes.'

The trial court rendered judgment for the defendants upon the verdict. Subsequently, the plaintiff moved to vacate the jury's findings regarding special verdicts 1 and 3, and to grant him a new trial on the ground that the trial court committed prejudicial error to the plaintiff's substantial rights by refusing inquiry on voir dire as to the interest of the jurors, if any, in a casualty insurance company. Both motions were overruled, 16 Ohio Misc. 14, 241 N.E.2d 96.

The Court of Appeals affirmed the trial court's judgment. The cause is now before this court pursuant to the allowance of a motion to certify the record.

Andrews & Patton, Eastlake, and Arthur M. Illenberger, Eastlake, for appellant.

Thrasher, Dinsmore, Dolan & Svete and Joseph T. Svete, Chardon, for appellees.

STERN, Justice.

The issue presented is whether the trial court properly exercised judicial discretion in preventing inquiry of prospective jurors concerning their own or their immediate family members' connection with, interest in, or relationship to a casualty insurance company in an assault and battery case in which defense counsel informed the court prior to this examination out of the presence and hearing of the prospective jurors that one defendant was uninsured and that the other defendant was insured?

'The purpose of the examination of a prospective juror upon his voir dire is to determine whether he has both the statutory qualification of a juror and is free from bias or prejudice for or against either litigant.' Paragraph one of the syllabus of Pavilonis v. Valentine (1929), 120 Ohio St. 154, 165 N.E. 730. See, also, paragraph one of the syllabus of Vega v. Evans (1934), 128 Ohio St. 535, 191 N.E. 757, and paragraph one of the syllabus of Dowd-Feder v. Truesdell (1936), 130 Ohio St. 530, 200 N.E. 762. Moreover, the voir dire examination serves as the foundation upon which an intelligent exercise of the litigants' right to peremptory challenge may be made. Pavilonis v. Valentine, supra, and Dowd-Feder v. Truesdell, supra.

To achieve that purpose, reasonable latitude must be given to counsel on the voir dire examination. Questions will vary with the issues, the circumstances and the parties involved in the case. The questions propounded in voir dire examination must be asked in good faith, and this involves a question of fact for determination by the trial judge.

'The scope of the inquiry will not be confined strictly to the subjects which constitute grounds for the sustaining of a challenge for cause; but if it extends beyond such subjects it must be conducted in good faith with the object of obtaining a fair and impartial jury and must not go so far beyond the parties and the issues directly involved that it is likely to create a bias, a prejudice, or an unfair attitude toward any litigant.' Paragraph two of the syllabus of Vega v. Evans, supra.

'It is neither wise nor desirable for this court to prescribe the specific form such interrogatories are to take, or the manner of their presentation. That is a matter wholly for the trial court to determine in the exercise of its sound discretion and in the light of all the facts and surrounding circumstances.' Dowd-Feder v. Truesdell, supra, 535, 200 N.E. 764.

In exercising this discretion with regard to the standard insurance questions, the trial court is confronted '* * * with the problem of granting plaintiff in a personal injury case reasonable safeguards against obtaining a jury composed of men and women having insurance connections or interests and of relieving defendant from possible prejudice which interrogation concerning the jury's interests may tend to provoke.' Dowd-Feder v. Truesdell, supra, 531, 200 N.E. 763.

Numerous attempts have been made by this and other courts to define judicial discretion. State v. Ferranto (1925), 112 Ohio St. 667, 148 N.E. 362; 27 C.J.S. Discretion p. 292. In State v. Winne (1952), 21 N.J.Super. 180, 207, 91 A.2d 65, 78 (reversed on other grounds 12 N.J. 152, 96 A.2d 63), the court stated:

'Judicial discretion is the option which a judge may exercise between the doing and not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.'

The trial court properly exercised its discretion under the facts...