Olguin v. Thygesen

• Decision Date: 23 September 1943
• Docket Number: No. 4749.,4749.
• Citation: 47 N.M. 377,143 P.2d 585
• Parties: OLGUINv.THYGESEN et al.
• Court: New Mexico Supreme Court

47 N.M. 377

143 P.2d 585

OLGUIN

v.THYGESEN et al.

No. 4749.

Supreme Court of New Mexico.

Sept. 23, 1943.Rehearing Denied Dec. 6, 1943.

Appeal from District Court, Colfax County; Livingston N. Taylor, Judge.

Action by Guadulupe M. Olguin against Henry Thygesen and others, individuals doing business as Henry Thygesen & Company, to recover for personal injuries and property damage allegedly caused by negligence of defendants. Judgment for plaintiff, and defendants appeal.

Judgment affirmed.

Injuries sustained by workman when, while taking fellow employee to work, his truck collided at night with employer's unlighted road roller parked on highway, some distance from where injured workman's employment required him to set out and check flares, were not compensable under Workmen's Compensation Act so as to preclude maintenance of common law action for negligence against employer, since workman was not at time of injury working on or about “premises occupied, used, or controlled by employer” or in any “place where employer's business required his presence” within the Act. 1941 Comp. § 57-912( l).

Simms, Modrall & Seymour, of Albuquerque, and Crampton & Robertson, of Raton, for appellants.

Wilson & Wright, of Raton, and Fletcher A. Catron, of Santa Fe, for appellee.

MABRY, Justice.

Plaintiff (appellee) brought this action to recover damages for personal injuries and for damages to his truck, alleged to have been caused by the negligence of defendants (appellants). The case was tried to a jury, which resulted in a verdict of $6,309, together with costs, and defendants appeal, assigning errors which are argued under five points, namely:

(1) The trial court should have declared a mistrial and discharged the jury panel because of the improper question relating to indemnity insurance asked of the jurors on their voir dire examination;

(2) The injuries suffered by the plaintiff were compensable under the Workmen's Compensation Act, and hence plaintiff could not maintain a common law action for negligence;

(3) As a matter of law, the plaintiff was guilty of contributory negligence barring any recovery;

(4) The District Court erred in giving “Plaintiff's Requested Instruction No. 1.”

(5) The verdict is erroneous on its face.

We examine first the question whether a mistrial should have been declared and the jury panel discharged because of the alleged improper question relating to indemnity insurance which was propounded to the jurors on their voir dire examination. In the course of examination of the jury panel one of the attorneys for plaintiff asked the question: “Gentlemen, I will ask all of you a general question: If it should develop that the real party in interest was an insurance company would that make any difference in your verdict?” This question was immediately objected to and the court asked to declare a mistrial and dismiss the jury panel. Their motion was overruled and the court then and there instructed the jury: “Gentlemen of the Jury, you are instructed that on the last question that Mr. Wright has asked you Gentlemen of the Jury as a body, the objection was made to the question and the court sustained the objection, and you are now instructed that insofar as that last question applies to the insurance company you may disregard that entirely as it is out of the record so far as this case is concerned.” Defendants contend that not only was the question improper, but that assuming it to be improper, the court's instruction did not cure the error or the prejudice engendered thereby. Counsel for defendants concede that plaintiff, in this character of suit has the right to inquire of prospective jurors whether they are employed by an insurance company or whether they own stock in any such company, or even the inquiry may go so far as to ascertain whether members of the immediate family are employed by or own stock in such company, but urge that under no circumstances must the question be asked in such a way as to convey directly the idea that the party sued is indemnified, and never merely for the purpose of getting the fact before the jury. And, counsel for plaintiff seem to have no quarrel with this statement of the law.

We know that courts sustain questions propounded to juries upon their voir dire when they are asked directly whether they own stock, or are interested, in an insurance company; even when the insurance carrier is called by name, although this latter method is not recognized as the best way to secure the information. See Fielding v. Publix Cars, Inc., et al, 130 Neb. 576, 265 N.W. 726, 105 A.L.R. 1306; Levens v. Stocco, 5 Cal.App.2d 693, 43 P.2d 357; Green Construction Co. v. Lampe, 174 Okl. 351, 50 P.2d 286; Dowd-Feder v. Truesdell, 130 Ohio St. 530, 200 N.E. 762.

[1] The question is not whether any rule of law can deny a litigant reasonable latitude in the examination of prospective jurors as to their qualification in this as in other respects. A rule which would deny him that right or deprive him of that privilege deprives him of a substantial right. Dowd-Feder v. Truesdell, supra. What is reasonable latitude, and what is a good faith effort as distinguished from a ruse, or trick, to get to the jury the knowledge that the defendant is insured, is the question.

[2][3] It is neither wise nor desirable for a court to prescribe the specific form such interrogatories are to take or the manner of their presentation. This matter is one for the trial court to determine in the exercise of its sound discretion. The overwhelming weight of authority is that where parties act in good faith, considerable latitude should be allowed in the interrogation concerning the competency of prospective jurors to try the facts under investigation.

“The questions that may be propounded necessarily vary with the varying issues, circumstances, and parties as such issues, circumstances, and parties may operate to influence or bias particular jurors, as distinguished from jurors generally. Because of the great variety of such influences, the character and scope of the questions that may be propounded necessarily cannot become standard, but must be controlled by the court in the exercise of a sound discretion, the court having for its purpose [the] securing to every litigant an unbiased jury.” Pavilonis v. Valentine, 120 Ohio St. 154, 165 N.E. 730, 731.

“Much rests in the discretion of the courts as to what questions may or may not be answered, but, in practice, very great latitude is, and generally ought to be, indulged.” Epps v. State, 102 Ind. 539, 549, 1 N.E. 491, 494.

In Avery v. Collins, 171 Miss. 636, 157 So. 695, 158 So. 552, a proper means of ascertaining the qualification of jurors with respect to their insurance connections is proposed, but yet that court immediately adds that there could be cases wherein it would happen that there would be no reasonable method of getting at the question except by some form of direct interrogatory which would, of necessity, disclose that defendant in the particular case was probably insured.

[4] The great majority of the cases passing upon this question hold that the form of the question, the circumstances of its being asked, and the manner of its presentation is a matter resting largely in the trial court's discretion, which is not to be disturbed in the absence of a clear showing of abuse. For cases resting the holdings upon it being a matter within the trial court's reasonable discretion, see Beasley v. Bond, 173 Okl. 355, 48 P.2d 299; Fielding v. Publix Cars, Inc., supra; 105 A.L.R. 1326. In Sparks v. Holland, 209 N.C. 705, 184 S.E. 552, it was held that when the trial court found good faith back of the questioned query it was justified in saying there was no error in propounding it. This is in line with the holding in a large number of the cases which have been called to our attention.

[5] Questions directed to jurors on voir dire examination in regard to their interest in insurance companies are not prejudicial per se. Even assuming that such questions apprise the jurors that an insurance company is interested in the final outcome of the case, it does not necessarily constitute reversible error. If the amount of damages assessed by the jury is not disproportionate to that which the evidence reasonably justifies, or defendant's liability under the evidence is not a close question, it has frequently been held that there has not been a miscarriage of justice. Williams v. Layne et al., 53 Cal.App. 2d 81, 127 P.2d 582, 584; Arnold v. California Portland Cement Co., 41 Cal.App. 420, 183 P. 171; Eldridge v. Clark & Henery Const. Co., 75 Cal.App. 516, 243 P. 43. It is said in Faber v. C. Reiss Coal Co., 124 Wis. 554, 102 N.W. 1049, that such examination of jurors is proper so long as it is conducted in an honest effort to discover the status and state of mind of jurors regarding the matter in hand, or any matter reasonably likely to unduly influence them.

Judging from the more recent and better reasoned cases, it may be said that appellate courts more and more are inclined to leave with the trial court's discretion the determination of this question. Whether there has been an abuse of this privilege which litigants possess of ascertaining whether jurors would be unfairly influenced if liability insurance were involved in the case, is left largely to such discretion, and when reasonably exercised, to remain undisturbed in these, as in other cases.

We are directed to innumerable cases where the question has arisen; and these are not all cases where we have an implication merely, but many arose under circumstances of a clear showing, that the defendant was so insured. As is pointed out by the note writer in 105 A.L.R. 1320, it is not the proper inquiry which of necessity divulges the information that is sought to be restricted, but rather the abuse which has arisen through bad faith injection of the question, through one method or another, where no...