Powell v. Kansas Yellow Cab Co.

• Decision Date: 12 December 1942
• Docket Number: 35685.
• Parties: POWELL v. KANSAS YELLOW CAB CO. et al.
• Court: Kansas Supreme Court

131 P.2d 686

156 Kan. 150

POWELL v. KANSAS YELLOW CAB CO. et al.

No. 35685.

Supreme Court of Kansas

December 12, 1942

Rehearing Denied Feb. 1, 1943.

Syllabus by the Court.

Normally cases should be tried between the parties to action.

On voir dire examination of jurors in personal injury suit, it is error to permit plaintiff's counsel to ask questions unnecessarily suggesting to jurors fact that defendant is insured by a company which will pay fees of defendant's attorneys and any judgment against defendant.

Whether jurors, on voir dire examination, should be asked question suggesting fact that defendant is insured by a company which will pay any judgment against him, should be determined by trial court before such question is propounded, not afterwards.

In personal injury suit, where evidence does not clearly show that jury's verdict for plaintiff is excessive, but amount thereof may have been influenced by question, asked jurors on voir dire examination by plaintiff's counsel as to whether any juror owned stock in insurance company with which defendant carried liability insurance, judgment on such verdict should not be allowed to stand.

A wife may contract and make herself personally liable for her doctor and hospital treatments and medical bills irrespective of husband's liability therefor.

Where married woman conducted business of her own, extra expense to which she was put by hiring someone to do her work because of personal injuries sustained by her was proper item to be considered by jury in determining amount of damages to be awarded her.

Damages for time lost by woman as result of personal injuries sustained by her were not recoverable, in absence of other evidence on such question than that she had to employ someone to do her work.

It is trial court's duty to supervise form of special questions to jury, so as to make them pertinent to issues and testimony.

1. A civil action should be tried upon the issues framed by the pleadings and between the parties to the action.

2. In the trial of a civil action it is just as important that the parties to the action have a fair trial as it is that they have a trial.

3. In an action for damages, where an insurance company is not a party, it is gross misconduct for counsel for plaintiff, in examining jurors on their voir dire, to ask any question which indicates defendant will not have to pay a judgment rendered for plaintiff but that some insurance company is bound to pay it.

4. In an action for damages for personal injuries sustained by plaintiff in an automobile casualty, alleged to have resulted from the negligence of a named defendant, and where no insurance company is a party, it is reversible error for plaintiff's counsel to ask jurors on their voir dire if they are stockholders or directors in an insurance company.

5. A married woman who is sick or injured may contract for medicines and for doctor and hospital bills and become personally liable for them irrespective of any liability her husband may have to provide such necessities.

6. A married woman, who conducts a business on her own account who was injured in an automobile casualty and was compelled to hire someone to do her work for a time, is entitled to have the sum paid taken into account in an action against a negligent third party for causing her injury where no allowance is submitted to the jury for loss of earning capacity.

Appeal from District Court, Wyandotte County, Division No. 1; Edward L. Fischer, Judge.

Action by Nancy Powell against the Kansas Yellow Cab Company and others for personal injuries. From a judgment for plaintiff against named defendant, it appeals.

Reversed with directions.

A. J. Herrod, of Kansas City, for appellants.

John E. Blake, of Kansas City, for appellee.

HARVEY Justice.

This was an action for damages for personal injuries sustained by plaintiff, a passenger in a taxicab which collided with an automobile operated by Ferd Banks at a street intersection. Banks' demurrer to plaintiff's evidence was sustained. A jury answered special questions and returned a general verdict for $4,358 against the taxicab company. It has appealed.

The evidence--not free from controversy--may be summarized as follows: Argentine Boulevard is an east and west street in Kansas City and is paved with cement. It is intersected by 18th street, which at the intersection and north of there, is paved with brick. South of the intersection it is improved with a graveled surface. A state highway from the north on 18th street turns west at the intersection on Argentine Boulevard. At the center of the intersection there is a covered manhole for a drainage sewer. Directly northeast of the intersection there were high weeds which interfered with the view. Plaintiff lived about 200 yards north of the intersection on the west side of 18th street. She is married and on her own account conducts a business of dressing chickens--150 or 200 a day, sometimes as many as 500. About 1 p. m. on the day in question she entered a taxicab which she had called to go on a trip. The taxicab proceeded south, with plaintiff as a passenger, on 18th street and turned to the left into Argentine Boulevard, and almost immediately collided with a car driven by Ferd Banks, with the result that plaintiff received numerous bruises and injuries. The question whether the driver of the taxicab or Banks was to blame was one of the controverted issues. There appears to be substantial evidence to support findings to the effect that the driver of the taxicab, in making the turn, drove close to the northeast corner of the intersection and collided with Banks' car, which was on its own righthand side of the street near the corner.

Appellant contends plaintiff's counsel was guilty of misconduct by asking the jury if they owned stock in a certain insurance company. The record on that point is as follows: After the jurors had been called to the box the trial judge stepped into his chambers for a few minutes while the jurors were being examined on their voir dire. Counsel for plaintiff asked the members of the panel:

"Q. Does any member of the jury own any stock in the Pennsylvania Casualty Company, an insurance company?"

On objection being made, the judge returned to the court room, where the following proceedings were had:

"And thereupon, in open court, while the jury was being drawn, the following oral proceedings were had to the Court alone, out of the hearing of the veniremen being examined upon their voir dire:

"Mr. Herrod: Mr. John Blake, in the examination of the panel just asked this question: 'Does any member of the jury own any stock in the Pennsylvania Casualty Company, an insurance company?' And I move to discharge the jury, the panel, for the reason that the jury would now have the idea that the Pennsylvania Casualty Company or some other insurance company was carrying liability insurance in this case on the defendant's cabs.

"The Court: Well, I don't know that that is necessarily error.

"Mr. Blake: The law requires, if your Honor please, or the city ordinance requires, that these companies carry insurance, and this is on record, the insurance policy is on record in the City Clerk's office, in Kansas City, Kansas.

"Mr. Herrod: That is not pleaded. Not a word in the pleadings.

"Mr. Blake: That is true.

"Mr. Herrod: The casualty company is not a defendant.

"The Court: It will be denied, but put on the soft pedal on this insurance business, because I don't know how far you can go. I rather think that is on the border line, but I hardly think it is reversible error. And that question might come up again before we are through.

"Mr. Blake: I understand.

"The Court: It is my impression that should be permitted, but it is a dangerous proposition to get too much of that kind of thing in the record.

"Mr. Blake: I understand. But I may ask that question?

"The Court: You have already asked it.

"Mr. Blake: But I had no response, because I saw Mr. Herrod start to make an objection.

"The Court: All right. Go ahead to that extent.

"And thereupon, the following oral proceedings were had to both Court and jury:

"Mr. Blake: I suggest this: May I have an indication of an answer from the jury on the last question I asked? (No response from jury.)" ***

The record does not show the matter was referred to again during the trial. It was presented by defendant as one of the grounds in a motion for a new trial. Upon the hearing of the motion the court specifically found: "*** that counsel for plaintiff was not guilty of misconduct in questioning the jury upon their voir dire relative to the prospective jurors being stockholders in an insurance company and that counsel for plaintiff acted in good faith in asking said question; that counsel for the plaintiff did not during the trial of the case attempt to inject the question of insurance or parade the same before the jury in an effort to prejudice the jury."

In this court counsel for appellants stress the procedure as a ground for reversal and argue that it likely affected the controverted question of liability and the amount of the verdict, citing many of our cases.

Normally cases should be tried between the parties to the action. That is common fairness. For the jury in an action for damages to be informed or given to understand that no matter how much they construe most favorably to plaintiff the evidence on controverted issues of liability, or how liberal they are with the damages allowed, defendant will not have to pay naturally places defendant in a disadvantageous position. In this state the question of how to deal with the matter has been an annoying one to litigants, attorneys and courts for the last...