Miller v. Kooker
| Decision Date | 12 March 1929 |
| Docket Number | 39550 |
| Parties | JAMES MILLER, Appellee, v. E. M. KOOKER, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 24, 1929.
Appeal from Story District Court.--H. E. FRY, Judge.
Action for damages for personal injuries suffered by pedestrian from collision with automobile at street crossing. Verdict and judgment for plaintiff. Defendant appeals.
Reversed.
Stipp Perry, Bannister & Starzinger and Nichol & Nichol, for appellant.
Lee Steinberg & Walsh, for appellee.
OPINION
I.
Plaintiff, while crossing from the south side of Main Street in Ames northwardly along the west side of the Kellogg Avenue intersection, was struck by defendant's eastwardly moving delivery truck, sustaining thereby serious injuries. The city of Ames has upwards of 9,000 inhabitants, besides students. This intersection is one of the busiest in the city. Main Street runs east and west. At the place in controversy, its sidewalks are 13 feet wide, distance between curbs 54 feet. A street-car track of the usual width runs along the center of the street. Kellogg Avenue at this intersection is provided with 10-feet sidewalks and is 46 feet in width between curbs. Both streets are paved. The accident occurred on the afternoon of January 2d, when the streets were icy. There is testimony tending to show that plaintiff, who was 75 years old, was proceeding north on the west sidewalk of Kellogg Avenue. A few feet to the west of the southwest curb of the intersection, an automobile was parked diagonally from northwest to southeast. There is evidence tending to show that other automobiles were similarly parked along the south side of Main Street west of the intersection. When plaintiff reached the south curb of Main Street, he paused, looked in each direction, could see 30 or 40 feet west along the car line, saw no approaching car, and stepped upon the paving; and, after taking two or three steps,--7 or 8 feet,--and while within the shelter zone of the parked automobiles, he was struck by the right fender of defendant's delivery truck, which was coming from the west at a speed of 18 to 20 miles per hour, without warning signal, and which, when it struck plaintiff, was swerving slightly to the right, or south. Just as plaintiff saw the radiator, he tried to stop, and threw himself back, but was immediately struck. He was within the sidewalk line.
We do not undertake the useless task of setting out the countervailing contentions. It is sufficient to say that the questions of the negligence of the driver of defendant's truck and of plaintiff's contributory negligence were for the jury, and that the evidence is not such as to require a reversal of the order denying new trial for insufficiency of evidence.
II. Defendant assigns as error misconduct in bringing and keeping prominently before the jury the fact that defendant carried casualty insurance, was not the real party concerned in the recovery asked, and would not personally suffer from an adverse verdict. Defendant, in making his case, called a physician for the Travelers' Life Insurance Company, from whose cross-examination it appeared that defendant was insured in that company. Plaintiff, therefore, argues not only that he had the right to show who was the real party defendant in interest, but that any error or misconduct in his procedure was waived. In the examination of the jurors on their voir dire, plaintiff, over objection, persisted in inquiring of the jurors whether they carried insurance on their cars, whether they were interested in any way in any organization writing insurance against liability for damages caused by accident, whether they wrote such insurance, or whether it was their duty to adjust claims for personal injuries. The jurors to whom these inquiries were addressed consisted largely of farmers and farm wives. Plaintiff knew that defendant was insured in the Travelers' Company, for one member of the panel was an agent of that company, and, in response to an inquiry by defendant's counsel, plaintiff's counsel, in the absence of the jury, stated that he knew of this relationship. Plaintiff's interrogatories to the jurors did not go to the question whether they themselves had caused injuries or were charged with having done so or with being injuries or were charged with having done so or with being under liability therefor or were connected with the Travelers' Company, nor did the plaintiff's inquires of the jurors have any interest in the question of whether they were of careful or negligent habits in the operation of their automobiles. Defendant's counsel proposed to plaintiff's counsel that the agent juror referred to might be excused, and that it would be unnecessary to examine him in the presence of the whole jury, in order to develop "his agency," to which plaintiff's counsel responded:
The court ruled that, if plaintiff's counsel did not want to agree to defendant's proposition, he did "not have to." It is urged with much vehemence that plaintiff had the right to know who was, and to bring out into the open, the real party in interest in defending the lawsuit, and to ascertain from the members of the panel whether they were similarly interested, or had similar business connections. It is, for present purposes, a sufficiently complete statement of the case to say that the two questions to be tried were: First, was defendant's driver negligent, and second, was plaintiff negligent? The fact that defendant's liability for his driver's negligence, if any, was insured, could have no possible legitimate bearing upon the proper determination of these questions. If defendant was insured, he was still not responsible if his driver was not negligent. The insurance company agreed to be responsible only for the negligence of the defendant or of his servants, not for injuries which were not chargeable to the fault of the defendant, or which were chargeable to the fault of the plaintiff. Casualty insurance like other insurance, is justified as an economic provision. The chief beneficiaries in such insurance are those who have meritorious claims for injuries for which, without the insurance, there might be no responsible recourse. If the fact of the insurance is to work against the insurance company, the insurance and its beneficent purpose will destroy itself, and the principal sufferers will be those who suffer injuries which ought to be recompensed. Plaintiff argues that insurance companies prefer jurors who are not...
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