Mitchell v. Vann
| Decision Date | 18 February 1965 |
| Docket Number | 4 Div. 154 |
| Citation | 278 Ala. 1,174 So.2d 501 |
| Parties | R. C. MITCHELL v. Jerry Franklin VANN. |
| Court | Alabama Supreme Court |
Lee & McInish, Dothan, for appellee.
Plaintiff appeals from judgment for defendant in action for personal injury allegedly sustained by plaintiff as the proximate result of the negligence of defendant in operating an automobile so as to cause it to run into the plaintiff.
Plaintiff assigns as error the action of the court in denying plaintiff's motion that the court qualify the prospective jurors 'as to whether any of the jurors is a stockholder, officer or agent, or employee of the Dixie Auto Insurance Company, of Anniston Alabama.' Insurer will be referred to as Dixie.
Overruling the ground of the motion for new trial which raises the same point is also argued as error.
Plaintiff stated to the court that at the time of the injury sued for, plaintiff had in full force and effect an insurance policy with Dixie, under the terms of which policy the insurer would be liable to pay 'to the plaintiff on any judgment of any damages caused by the defendant in this case at the time of the collision, not exceeding $5,000.00 . . ..' Plaintiff stated to the court that defendant did not carry liability insurance at the time of collision. On the hearing of the motion for new trial, it was stipulated that defendant had no liability insurance at the time of the alleged accident.
On hearing the motion for new trial, the court overruled defendant's objection to a question propounded to plaintiff, and said:
The policy contains the following provisions:
'Other States: The financial responsibility requirement of the state in which the policyholder lives.
'In Consideration of the payment of the premium for this endorsement, the company agrees with the named insured subject to the limits of liability, exclusions, conditions and other terms of this endorsement and to the applicable terms of the policy:
'INSURING AGREEMENTS
'1. Damages for Bodily Injury Caused by Uninsured Automobiles: To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
'..........
'EXCLUSIONS
'This endorsement does not apply:
'(a) to bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which such insured, his legal representative or any person entitled to payment under this endorsement shall, without written consent of the company, make any settlement with or prosecute to judgment any action against any person or organization who may be legally liable therefor;
'..........
'CONDITIONS
'..........
'6. Arbitration: If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this endorsement, then, upon written demand by either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this endorsement.
'7. Trust Agreement: In the event of payment to any person under this endorsement:
'(a) The company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made;
'(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of the damages which are the subject of claim made under this endorsement;
'(c) such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights;
'(d) if requested in writing by the company, such person shall take, through any representative designated by the company, such action as may be necessary or appropriate to recover such payment as damages from such other person or organization, such action to be taken in the name of such person; in the event of a recovery, the company shall be reimbursed out of such recovery, for expenses, costs and attorneys' fees incurred by it in connection therewith;
'(e) such person shall execute and deliver to the company such instruments and papers as may be appropriate to secure the rights and obligations of such person and the company established by this provision.
'..........
Defendant cites Hudson v. Stripling, 261 Ala. 196, 73 So.2d 514, where this court said:
'It is settled by the decisions of this court that the plaintiff is entitled to have the jury qualified as to their connection with or interest in a liability insurance company obligated under its policy issued to the defendant, to pay all or any part of any recovery which may be had against the defendant in the case. * * *' (261 Ala. at page 201, 73 So.2d at page 517)
See also: Citizens' Light, Heat & Power Co. v. Lee, 182 Ala. 561, 62 So. 199; Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So.2d 212; Code 1940, Title 30, § 55, Act No. 260, 1955 Acts, page 605.
Underlying this rule seems to be the ancient principle that 'A man cannot, under the law, be a judge or a juror in his own case. * * *' Citizens' Light, Heat & Power Co. v. Lee, 182 Ala. 561, 577, 62 So. 199, 205.
Voir dire examination of jurors seems to be necessary to allow parties to ascertain whether prospective jurors be disqualified or subject to challenge.
It cannot be doubted that the law demands that jurors who administer justice in its courts should be free from bias or prejudice. They should be impartial and indifferent to the result of the suit, save as the evidence and the law direct. Citizens' Light, Heat & Power Co. v. Lee, supra, at page 577, 62 So. 199.
As we understand defendant's brief, he argues that the inquiry moved for by plaintiff was properly denied for four reasons, to wit:
1. The policy was issued to plaintiff and not to defendant.
2. Subdivision 12 of § 55, Title 30, Code 1940, as amended, allows as ground for challenge that any juror is officer, etc. of 'an insurance company indemnifying any party to the suit against liability,' and the policy issued here by Dixie did not indemnify any party to this suit.
3. The policy provided for arbitration and was merely a contract between plaintiff and Dixie in which defendant was not interested.
4. Not only must plaintiff submit his claim against Dixie to arbitration, but Dixie shall have all rights against defendant which plaintiff had against defendant.
The reason for disqualifying a juror who is stockholder, etc., in an insurance company, does not depend, as we see it, on whether the policy was issued to plaintiff or defendant. The juror is disqualified because he is interested in the company and the company stands to gain or lose as a result of the verdict.
Subdivision 12 of § 55, Title 30, supra, as amended, recites:
'. . .
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