Morris v. Duker

Citation414 S.W.2d 77
Decision Date13 March 1967
Docket NumberNo. 1,No. 52257,52257,1
CourtMissouri Supreme Court
PartiesLaura MORRIS, Appellant, v. Charles F. DUKER, Respondent

Thomas m. Sullivan, Edward L. Fitzgerald, Downey, Sullivan & McCormick, Kansas City, for appellant.

Joseph A. Sherman, Barton Brown, Deacy & Deacy, Kansas City, for respondent.

HOUSER, Commissioner.

Laura Morris, a pedestrian, sued Charles F. Duker, the driver of an automobile, for $55,000 damages alleged to have been sustained by plaintiff when she was struck by defendant's automobile while walking across a street in Kansas City. A trial jury returned a verdict for defendant, and plaintiff has appealed from the judgment entered on the verdict.

Appellant's first point is that the court erred in refusing to permit plaintiff on voir dire to ask the members of the jury panel whether they held policies of insurance in State Farm Mutual Automobile Insurance Company, which was interested in the outcome of the trial. In chambers, out of the hearing of the veniremen, counsel for plaintiff indicated that he intended to inquire whether any members of the panel, or members of their immediate families, were employed by or held policies with this insurance company. Counsel for defendant objected on two grounds. First, it was objected that nothing would be done on behalf of defendant to cause the name of the insurance company to be mentioned in evidence in the presence of the jury and that the defendant was used for an amount 'in excess of any existing policy of insurance.' The court overruled this objection. Second, defendant objected 'to any inquiry as to policy holders for the reason that the State Farm Mutual is a non-assessable mutual company; that the mere fact that a juror may be a policy holder would not in and of itself disqualify him as a juror or give him any financial interest. The only financial interest that he could have would be the effect that this verdict would have on his premium, and that would be of such a small amount as to be insignificant, for the reason that there are so many policies of insurance issued by State Farm.' The court sustained the second objection. The only question then asked of the panel with regard to insurance was whether any of the veniremen or any of the members of their immediate familes were either an officer in or employed by State Farm Mutual Automobile Insurance Company. The panel remained silent. There is nothing in the record to show that any of the veniremen, or any of the members of their families, actually were officers of or employed by State Farm Mutual, or that any of them carried insurance with that company.

The extent to which counsel may go in inquiring of veniremen with respect to their connection with an insurance company interested in the outcome of a case on trial is a matter resting within the sound discretion of the trial judge. The court is allowed a broad discretion in determining the latitude of the inquiry respecting the qualifications of veniremen to sit as jurors. Eickmann v. St. Louis Pub. Serv. Co., Mo.Sup., 323 S.W.2d 802, 807. The action of the court in this respect will not be set aside unless there is a manifest abuse of discretion. Moore v. Middlewest Freightways, Inc., Mo.Sup., 266 S.W.2d 578, 585; Kendall v. Prudential Insurance Company of America, Mo.Sup., 327 S.W.2d 174; Bunch v. Crader, Mo.App., 369 S.W.2d 768(4) and cases cited, fn. 4. The burden is on appellant to establish prejudicial error upon an appeal, Nash v. Plaza Electric, Inc., Mo.Sup., 363 S.W.2d 637, 641, and this rule applies to an order restricting the scope of voir dire examination.

Appellant cites Gooch v. Avsco, Incorporated, Mo.Sup., 340 S.W.2d 665; Aiken v. Clary, Mo.Sup., 396 S.W.2d 668; McCollum v. Shubert, Mo.App., 185 S.W.2d 48; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538; Kaley v. Huntley, Mo.App., 88 S.W.2d 200, and Bunch v. Crader, supra. Gooch says that it is proper to ascertain what connection prospective jurors have with an insurance company interested in the defense, provided pertinent inquiries are made, and that the trial judge may reasonably circumscribe the inquiry 'by limiting the number of questions and imposing other curbs on the nature of the examination.' Aiken reversed a ruling prohibiting any and all inquiry of the panel with respect to an insurance company's interest on the mere basis of an affidavit of the president of the company that the company had no stockholders, officers or directors resident in Missouri and only one employee in this state, whose name did not appear on the list of prospective jurors. McCollum held that where the inquiry disclosed that 5 members of the panel held policies in a mutual company, plaintiff had a right to make an inquiry whether this fact would affect them one way or the other 'in the decision of a case in which you thought they were interested or might be interested,' because as policyholders in a mutual concern they were interested in the company as owners and substantially occupied the position of stockholders. Rytersky says that it is proper to ascertain whether a juror 'carries a like policy in some company.' Kaley holds that it is not improper to inquire whether any of the jurors or members of their families are policyholders or had any other connection with the insurance company interested in the outcome. Bunch upheld the action of the court in permitting inquiry whether members of the panel were policyholders, and considerable other interrogation with reference to the subject, on the basis that there was nothing to indicate bad faith on the part of counsel. The court points out, however, that absent special circumstances the better practice is to ascertain whether any member of the panel is interested by asking one general question.

None of these cases militates against our ruling that there was no error in restricting the inquiry to the question whether any panel member or member of his family was an officer or employee of the insurance company. It was a discretionary matter and in permitting the inquiry as to officers and employees but prohibiting it as to policyholders the court was not by that fact alone guilty of a manifest abuse of discretion. In making the objection defendant's counsel stated that State Farm is a nonassessable mutual company. This was not controverted at the trial by plaintiff's counsel. It has been held that the holders of nonasseassable policies are not disqualified as a matter of law from acting as jurors in a case in which the issuing company has an interest in the litigation. Kendall v. Prudential Insurance Company of America, Mo.Sup., 327 S.W.2d 174. This was an action brought directly against Prudential on a life policy issued by that company. Four veniremen disclosed that they were Prudential policyholders. The failure of the trial court to sustain plaintiff's challenges for cause, based on this fact, was upheld. The opinion pointed out that 'a challenge for cause is not require to be sustained as to every kind of policyholder under all circumstances. In view of modern widespread use of all kinds of insurance, such a rule would be unreasonable at least as to those with nonassessable policies or those who do not participate in policy dividends. The view that holders of nonassessable policies are not disqualified as a matter of law was stated in Kanzenbach v. S. C. Johnson & Son, Inc., 273 Wis. 621, 79 N.W.2d 249. See also Mellinger v. Prudential Insurance Company of America, 322 Mich. 596, 34 N.W.2d 450.' 327 S.W.2d, l.c. 177, 178. In Kendall the plaintiff failed to make a sufficient showing that the veniremen were interested in the outcome of the case. The court said that any interest of any of the challenged veniremen was too minute and too remote to require the court to sustain a challenge for cause as to them.

Now in this Court plaintiff contends that State Farm is not a nonassessable company. This, however, is not the criterion. The question on this appeal is whether plaintiff was prejudiced by the refusal of the court to permit inquiry whether any member of the panel was a policholder. The burden is on the appellant.

If the fact that a member of the venire was a policyholder rendered him ineligible as a matter of law to sit as a juror it would constitute an abuse of discretion to refuse to permit the inquiry, but it does not. In Swinger v. Bell, Mo.Sup., 373 S.W.2d 30, 32, this Court held that 'The fact alone of being a policholder, however, does not disqualify * * *.' And see McCollum, supra, 185 S.W.2d l.c. 50(3).

If the inquiry had been allowed it would have been proper. McCollum, supra. The better practice would be to allow such an inquiry. If a venireman is a policholder the plaintiff has a right to inquire whether in view of that fact he could try the case fairly. McCollum, supra. The refusal to permit inquiry whether any panel member was a policyholder, however, does not constitute an abuse of discretion requiring us to upset a verdict and judgment, in the absence of an allegaton in the motion for new trial, and proof at the hearing, or an admission, that in fact one or more of the jurors empanelled was a policyholder, and showing that plaintiff was prejudiced by the ruling. There was no such allegation in the motion for new trial, and this fact was not admitted by deendant. The record does not show that evidence was taken on the motion for new trial, or that any of the jurors in fact were policyholders or that any of them had any interest in the outcome of the case, not even a minute or remote interest. No prejudicial error in this connection has been established under these circumstances.

Appellant's second point is that the court erred in giving Instruction No. 5 on contributory negligence, as follows:

'Your verdict must be for the defendant whether or not defendant...

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