Nichols v. Owens Motor Company

• Decision Date: 17 April 1931
• Docket Number: 27492
• Citation: 236 N.W. 169,121 Neb. 105
• Parties: EDWIN NICHOLS, APPELLEE, v. OWENS MOTOR COMPANY, APPELLANT
• Court: Nebraska Supreme Court

236 N.W. 169

121 Neb. 105

EDWIN NICHOLS, APPELLEE, v. OWENS MOTOR COMPANY, APPELLANT

No. 27492

Supreme Court of Nebraska

April 17, 1931

APPEAL from the district court for Scotts Bluff county: EDWARD F CARTER, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

The plaintiff may show at the beginning of a trial, while the jury are being impaneled, that an insurance company is interested in defending an action for personal injuries, in order that the right of challenge may be intelligently exercised.

A plaintiff in a personal injury action may by appropriate interrogatories on cross-examination elicit testimony proving that the defendant is indemnified from loss by insurance.

" The purpose of such inquiries is to inform the court, jury, attorneys, and litigants as to the true status and actual interest of the parties concerned as well as those participating in the litigation." Sloan v. Harrington, 117 Neb. 809, 223 N.W. 663.

It is reversible error for the court, when requested by the tender of an appropriate instruction, to refuse to limit the jury's consideration of testimony relative to defendant's indemnification from loss by a policy of public liability insurance to the purposes for which it may be received.

Additional Syllabus by Editorial Staff.

In action for injuries, plaintiff's introduction of proof, by direct evidence, that defendant was indemnified by liability policy, held error, but not prejudicial, in light of record.

Failure to give instruction limiting jury's consideration of evidence that defendant had liability insurance held not error, where instruction requested sought to exclude such evidence altogether.

Appeal from District Court, Scotts Bluff County; Carter, Judge.

Action by Edwin Nichols against the Owens Motor Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Morrow & Morrow, for appellant.

Mothersead & York, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY and DAY, JJ.

OPINION

DAY, J.

This was an action for damages for personal injuries brought by Dr. Nichols against the Owens Motor Company. The defendant was engaged in selling automobiles and the plaintiff was a prospective customer. While an agent of the company was demonstrating an automobile to the plaintiff for the purpose of consummating a sale of said car, the accident occurred and the plaintiff was injured. From a verdict and judgment in favor of the plaintiff, the defendant appeals.

In this case, after the jury had been impaneled and sworn, the plaintiff, in his opening statement, stated that he would prove that the defendant was indemnified by a policy of public liability insurance. Thereafter, he proved by his first witness that the defendant was so indemnified. "It is not improper to ascertain at the beginning of the trial and while the jury are being impaneled whether an insurance company is interested in the defense of an action for personal injuries, and whether any agent or officer of such corporation is upon the panel, so that the right of challenge may be understandingly exercised." Penhansky v. Drake Realty Construction Co., 109 Neb. 120, 190 N.W. 265. See, also, Egner v. Curtis, Towle & Paine Co., 96 Neb. 18, 146 N.W. 1032; Koran v. Cudahy Packing Co., 100 Neb. 693, 161 N.W. 245. The reason that plaintiff is permitted to show the interest of an insurance company is to determine whether the relationship of the prospective jurors and the insurance company was such as would disqualify them, because by implication they might be biased and prejudiced.

Again, we have held that it is proper for the plaintiff in a personal injury action by appropriate interrogatories on cross-examination of the defendant or any of his witnesses to show that the defendant is indemnified from loss by an insurance company. Miller v. Central Taxi Co., 110 Neb. 306, 193 N.W. 919; Jessup v. Davis, 115 Neb. 1, 211 N.W. 190; Frickel v. Lancaster County, 115 Neb. 506, 213 N.W. 826. "The purpose of such inquiries is to inform the court, jury, attorneys, and litigants as to the true status and actual interest of the parties concerned as well as those participating in the litigation." Sloan v. Harrington, 117 Neb. 809, 223 N.W. 663.

To summarize: The rule relative to showing the interest of an insurance company in the litigation is that a plaintiff may show the fact of insurance for the purpose of intelligently questioning jurors on voir dire examination and that he may also cross-examine the witnesses for the defendant in order to show their motive, bias, or interest. No reason of the rule required or permitted the introduction of the testimony upon direct examination by the plaintiff as part of his case in chief to prove that the defendant was indemnified from loss by a policy of insurance. At the time of the introduction of this testimony the jury had been impaneled and sworn and the information was not necessary or useful for an intelligent examination of prospective jurors. At that time no witness had testified for the defendant. Therefore, there was no question of the motive, bias or interest of any witness and the introduction of such testimony was clearly improper. The defendant objected to the opening statement of the attorney and objected to every question asked of the witness who testified relative to the matter of insurance. It has been repeatedly suggested by this court that, when the purpose of an inquiry relating to insurance has been met, it should cease, and it is the duty of the trial judges to restrict the inquiry to these purposes. Sloan v. Harrington, 117 Neb. 809, 223 N.W. 663; Frickel v. Lancaster County, 115 Neb. 506, 213 N.W. 826. We have...