M. O'Connor Co. v. Gillaspy

Citation83 N.E. 738,170 Ind. 428
Decision Date28 February 1908
Docket NumberNo. 21,006.,21,006.
PartiesM. O'CONNOR CO. v. GILLASPY.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Boone County; S. R. Artman, Judge.

Action by James C. Gillaspy against the M. O'Connor Company. From a judgment for plaintiff, defendant appeals. Affirmed.Samuel M. Ralston, Joseph W. Hutchinson, and Wm. A. Ketcham, for appellant. A. J. Shelby and W. J. Beckett, for appellee.

MONTGOMERY, J.

Appellee recovered a judgment of $9,000 on account of personal injuries received while in appellant's employ from the falling of an elevator. The complaint charged appellant with negligence (a) in failing to inspect properly and to keep the elevator in good working order, and in using a hoisting rope thereon that was worn and partly broken in two; (b) in violating an ordinance of the city of Indianapolis which required all counter weight and hoisting cables used in elevators to be metallic, with hemp centers; (c) in violating an ordinance of Indianapolis which required every cable-hoisted elevator car or platform that runs in grooves to be provided with an approved safety device that would prevent the car from falling in case of a break in the cable or machinery; (d) in failing to keep the safety device provided in proper working condition, and suffering the “dogs” thereon to become rusty, and the spring to become too weak and rusty to operate the dogs; and (e) in violating an ordinance of Indianapolis which required a metallic capacity plate to be fastened in a conspicuous place in the elevator, and prohibited loading beyond 75 per cent. of such capacity. The overruling of appellant's motion for a new trial is the only error assigned. The grounds of the motion for a new trial are that the verdict is not sustained by sufficient evidence, and is contrary to law; that there was misconduct on the part of appellee, irregularity and error of law at the trial (a) in asking the jurors upon their voir dire whether any of them or any member of their families was interested as stockholder, officer, agent, or employé of any accident insurance company, and (b) in asking Bernard O'Connor, secretary and treasurer of appellant company, upon cross-examination (1) whether at the time of the accident appellant did not have insurance which included the bill of Dr. Oliver for services rendered to appellee on account of his injuries, (2) whether he did not pay such bill for the insurance company, and (3) whether appellant had not been reimbursed for the sum paid on this bill; that there was error in refusing to permit Bernard O'Connor to state what John Cryan said while inspecting the elevator as to what he intended to do in that connection; and that there was misconduct on the part of the jury in returning untrue answers to certain interrogatories.

Parties litigant in cases of this class are entitled to a trial by a thoroughly impartial jury, and have a right to make such preliminary inquiries of the juries as may seem reasonably necessary to elucidate their impartiality and disinterestedness. In the exercise of this right counsel must be allowed some latitude to be regulated in the sound discretion of the trial court according to the nature and attendant circumstances of each particular case. The examination of jurors on their voir dire is not only for the purpose of exposing grounds of challenge for cause, if any exist, but also to elicit such facts as will enable counsel to exercise their right of peremptory challenge intelligently. Questions addressed to this end are not barred, though directed to matters not in issue, provided they are pertinent, and made in good faith. It does not appear from the record that an accident or indemnity insurance company was in any manner interested in this action; but the laws of this state authorize the incorporation of companies for the purpose of insuring employers against accidental injuries to employés, and it is a matter of common knowledge that numerous companies are engaged in such insurance in this state. Although the pertinency or relevancy of the inquiry does not affirmatively appear from the record, the circumstances above mentioned forbid the assumption that counsel acted in bad faith and without some knowledge or information inducing a belief that such an insurance company was interested in the result of the trial. We accordingly hold that the court did not abuse his discretion or commit error in permitting appellee's counsel over objection to ask each juror upon his voir dire whether he or any member of his family was in any wise interested as stockholder, officer, or agent of the Ætna Insurance Company, or of any insurance company engaged in the business of insuring against accidents. Brussean v. Lower Brick Co. et al., 133 Iowa, 245, 110 N. W. 577;Foley v. Cudahy Packing Co., 119 Iowa, 246, 93 N. W. 284;Viou v. Brooks-Scanlon Lumber Co., 99 Minn. 97, 108 N. W. 891;Antletz v. Smith, 97 Minn. 217, 106 N. W. 517;Spoonick v. Backus-Brooks Co., 89 Minn. 354, 94 N. W. 1079;Howard v. Beldenville, etc., Co., 129 Wis. 98, 108 N. W. 48;Farber v. C. Reiss Coal Co., 124 Wis. 554, 102 N. W. 1049;Cripple Creek M. Co. v. Brabant, 37 Colo. 423, 87 Pac. 794;Vindicator Cons., etc., Co. v. Firstbrook, 36 Colo. 498, 86 Pac. 313;Swift & Co. v. Platte, 68 Kan. 1, 74 Pac. 635, 72 Pac. 271;Dow Wire Works Co. v. Morgan (Ky.) 96 S. W. 530;Blair v. McCormack Const. Co. (Sup.) 107 N. Y. Supp. 752. Bernard O'Connor, secretary and treasurer of M. O'Connor & Co., while testifying in its behalf, said that appellant had paid the bill at the infirmary and Dr. Oliver's charges for professional services rendered to appellee. Appellee's counsel upon cross-examination sought to show that these payments were made for an insurance company, and that appellant had been reimbursed for the same. Appellant's objections to the questions propounded were sustained, and thereupon appellant moved the court to set aside the submission and to discharge the jury, which motion was overruled. Counsel for appellant earnestly insist that these questions, taken in connection with the objectionable inquiry of the jurors upon their voir dire, injected an irrelevant, improper, and harmful element into this case, which requires a reversal of the judgment. It is contended that in this manner counsel for appellee adroitly brought to the attention of the jury a suggestion that an insurance company was obligated to indemnify appellant against all liability on account of this accident, and thereby facilitated the recovery of a verdict, and enhanced its amount.

The complaint alleged that on account of his injuries appellee had been put to great expense for doctor's bills, medicines, and nurse hire; but no proof was offered in his behalf of payment or liability for any specific bills of this character. It appeared incidentally that appellee had been confined in the hospital, and had received medical attention, and in this state of the record appellant proved by Mr. O'Connor that it had paid the bills so incurred. Appellee's counsel insist that, since appellant opened the door to this collateral inquiry, they had a right to enter, and appellant, having sought to gain undue favor with the jury in this way, cannot complain of the attempt to cross-examine and break the force of this influence, and at the same time contradict the statement of the witness as originally made and thus affect his credibility. We are not required to decide whether the evidence of payment of the accounts mentioned by appellant was relevant and proper or not; but we do hold that its introduction was sufficient to invite the questions propounded by appellee's counsel, and to acquit them of any imputation of bad faith or charge of misconduct in so doing. As said by the Court of Appeals of Kentucky, in the case of Henning v. Stevenson, 118 Ky. 318, 80 S. W. 1135: We do not see that there was any misconduct of counsel in...

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10 cases
  • White v. Evansville American Legion Home Association
    • United States
    • Indiana Appellate Court
    • June 11, 1965
    ...the court's instructions in applying the instructions to the evidence in reaching its verdict. In M. O'Connor & Company v. Gillaspy (1908), 170 Ind. 428, 435, 83 N.E. 738, 741, the Supreme Court of Indiana considered an assertion of error based upon an intimation by counsel that some one ot......
  • Rohrkaste v. City of Terre Haute
    • United States
    • Indiana Appellate Court
    • November 14, 1984
    ...in the outcome of the trial which might have skewed the juror's otherwise impartial approach to the evidence. M. O'Conner & Co. v. Gillaspy (1908), 170 Ind. 428, 83 N.E. 738; Goff v. Kokomo Brass Works (1909), 43 Ind.App. 642, 88 N.E. 312; Rust v. Watson (1966), 141 Ind.App. 59, 215 N.E.2d ......
  • M. O'Connor & Co. v. Gillaspy
    • United States
    • Indiana Supreme Court
    • February 28, 1908
  • Kraus v. Lehman
    • United States
    • Indiana Supreme Court
    • May 15, 1908
  • Request a trial to view additional results

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