M. O'Connor & Co. v. Gillaspy
| Decision Date | 28 February 1908 |
| Docket Number | 21,006 |
| Citation | 83 N.E. 738,170 Ind. 428 |
| Court | Indiana Supreme Court |
| Parties | M. O'Connor & Co. v. Gillaspy |
Rehearing Denied May 15, 1908.
From Boone Circuit Court; Samuel R. Artman, Judge.
Action by James C. Gillaspy against M. O'Connor & Co. From a judgment for plaintiff, defendant appeals.
Affirmed.
Joseph W. Hutchinson, W. A. Ketcham and Samuel M. Ralston, for appellant.
A. J Shelby and W. J. Beckett, for appellee.
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 in good working order the elevator, and in using a hoisting rope thereon that was worn and partly broken; (b) in violating an ordinance of the city of Indianapolis which required all counterweight and hoisting cables used in elevators to be metallic with hemp centers; (c) in violating an ordinance of said city requiring 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; (e) in violating an ordinance of said city requiring a metallic capacity plate to be fastened in a conspicuous place in the elevator, and prohibiting loading beyond seventy-five 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 employe 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 jurors as may seem reasonably necessary to show 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 indemnifying employers against liability for accidental injuries to employes, 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 mentioned forbid the assumption that counsel acted in bad faith and without some knowledge or information inducing a belief that such insurance company was interested in the result of the trial. We accordingly hold that the judge 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 anywise interested as stockholder, officer or agent of the Aetna Insurance Company, or of any insurance company engaged in the business of insuring against accidents. Brusseau v. Lower Brick Co. (1907), 133 Iowa 245, 110 N.W. 577; Foley v. Cudahy Packing Co. (1903), 119 Iowa 246, 93 N.W. 284; Viou v. Brooks-Scanlon Lumber Co. (1906), 99 Minn. 97, 108 N.W. 891; Antletz v. Smith (1906), 97 Minn. 217, 106 N.W. 517; Spoonick v. Backus-Brooks Co. (1903), 89 Minn. 354, 94 N.W. 1079; Howard v. Beldenville Lumber Co. (1906), 129 Wis. 98, 108 N.W. 48; Faber v. C. Reiss Coal Co. (1905), 124 Wis. 554, 102 N.W. 1049; Cripple Creek Mining Co. v. Brabant (1906), 37 Colo. 423, 87 P. 794; Vindicator, etc., Mining Co. v. Firstbrook (1906), 36 Colo. 498, 86 P. 313; Swift & Co. v. Platte (1903), 68 Kan. 1, 72 P. 271, 74 P. 635; Dow Wire Works Co. v. Morgan (1906), (Ky.), 29 Ky. L. Rep. 854, 96 S.W. 530; Blair v. McCormack Const. Co. (1907), 123 A.D. 30, 107 N.Y.S. 750.
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 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 of 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 appellee 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, 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 (1904), 118 Ky. 318, 80 S.W. 1135:
In the trial of this case it was wholly immaterial whether appellant was insured against liability or loss for such accidental injuries as that upon which this suit was founded. The existence of indemnity insurance could not change the facts upon which appellee predicated his action, or alter their legal effect as between appellee and appellant. But the cross-examination by appellee having been fairly invited by appellant's evidence, the court...
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