Raines v. Wilson

• Decision Date: 17 November 1931
• Docket Number: No. 41055.,41055.
• Citation: 239 N.W. 36,213 Iowa 1251
• Parties: RAINES v. WILSON.
• Court: Iowa Supreme Court

213 Iowa 1251

239 N.W. 36

RAINES

v.WILSON.^a1

No. 41055.

Supreme Court of Iowa.

Nov. 17, 1931.

Appeal from District Court, Scott County; Wm. W. Scott, Judge.

Action by the plaintiff, as administrator of the estate of Anna Bernice Raines, to recover for the death of said minor, which resulted from a collision between an automobile in which said minor was riding and an automobile owned and operated, at the time in question, by the defendant. Trial to the court and a jury. Verdict and judgment thereon for the plaintiff. The defendant appeals.

Affirmed.Smith & Swift and J. M. Maloney, all of Davenport, for appellant.

E. H. Pollard, of Ft. Madison, and Edw. Doerr, of Davenport, for appellee.

WAGNER, J.

The defendant in his assignments of error alleges in substance: (1) That the court erred in overruling his objection to a question propounded to the jurors on their voir dire examination; (2) that the court committed error in one of the instructions; and (3) that the verdict is so excessive as to indicate passion and prejudice; which complaints will be considered by us in the order stated.

The examination of the original twelve jurors was begun before the noon adjournment was taken. Upon the reconvening of the court, Mr. Pollard, of counsel for the plaintiff, said:

“Ladies and gentlemen of the Jury, the Court has given me permission to ask one question which I did not ask this morning. I am going to ask this question generally and if there is an affirmative answer, you may indicate that by raising your right hand.

Q. Are any of you or any of your immediate family stockholders in any insurance company?”

The appellant objected on the ground that “it is not proper as touching upon their qualifications in this case, and that Defendant does not believe there will be any evidence in this case of insurance, and we move that our objection to the question by counsel be sustained.” The objection was overruled, and the jurors answered in the negative. Upon the examination of the thirteenth juror, the plaintiff propounded the same interrogatory, to which the appellant interposed the objection that it is immaterial and not proper interrogation of the prospective juror as to his qualifications; that the record shows that it has been persistently asked by counsel, havingbeen asked of each and every juror, and is prejudicial to the defendant, and that there will not be any evidence of an insurance company in this case, and that it is for the purpose of prejudicing or attempting to prejudice and mislead the jury. The objection was overruled, and, upon the examination of three remaining jurors, the same question was propounded and the same objection made, and the same ruling made by the court. Nothing else occurred thereafter during the entire trial by way of remark, suggestion, insinuation, or otherwise, that the defendant's liability was covered by insurance. The sole question for our determination at this point in this case is: Is it permissible for the plaintiff to propound to the jurors the simple question, “Are you or any of the members of your family stockholders in any insurance company?”

[1][2][3] It is the general rule, as enunciated by this court, that a wide latitude is necessarily allowed counsel in examining the jurors for the purpose of advising him as to how to exercise his peremptory challenges, and that the matter must of necessity be left largely to the sound discretion of the trial court, and that in the absence of bad faith on the part of counsel, or a manifest abuse of discretion on the part of the trial court, we will not interfere. See Simons v. Mason City & Fort Dodge Railroad Company, 128 Iowa, 139, 103 N. W. 129;Ruby, Administrator, v. Chicago, Milwaukee & St. Paul Railway Company, 150 Iowa, 128, 129 N. W. 817;Foley v. Cudahy Packing Co., 119 Iowa, 246, 93 N. W. 284;Brusseau v. Lower Brick Company, 133 Iowa, 245, 110 N. W. 577;Mortrude v. Martin, 185 Iowa, 1319, 172 N. W. 17. We deem it advisable to review our cases upon this important question.

In Simons v. Mason City & Fort Dodge Railroad Company, 128 Iowa, 139, 103 N. W. 129, 133, this court made the following pronouncement: “A wide latitude is necessarily allowed counsel in examining jurors for this purpose [advising him as to how to exercise his peremptory challenges], and must, of necessity, be left to the sound discretion of the trial court. The exact situation cannot be reproduced in cold type, and many things must be taken into account by the trial court which cannot be made of record or considered here. Consequently, our rule has been not to interfere in such matters save where there has been a want of good faith on the part of counsel, or a manifest abuse of discretion on the part of the trial court. Foley v. Cudahy Co., 119 Iowa, 251, 93 N. W. 284, and cases cited. No such showing is made in this record as would justify us in reversing the case upon this ground.”

It will be noted that, in the instant case, counsel stated, before propounding the interrogatory to the twelve jurors, that the court had given him permission to ask this question. The question was propounded to the twelve jurors collectively, and thereafter to each of the four additional jurors. Nothing in the record indicates bad faith or want of good faith on the part of counsel in propounding the interrogatory.

In Ruby, Administrator, v. Chicago, Milwaukee & St. Paul Railway Company, 150 Iowa, 128, 129 N. W. 817, 818, the court sustained the objection to certain questions propounded, the answer to which would have been beneficial to the defendant's counsel in exercising his peremptory challenges; and, in passing upon the matter, this court made the following pronouncement: “Under the rule existing in this state defendant was entitled to have these questions answered in order that it might intelligently exercise its peremptory challenges. Simons v. Ry. Co., 128 Iowa, 139, 103 N. W. 129;State v. Dooley, 89 Iowa, 584, 57 N. W. 414;Brusseau v. Lower Brick Co., 133 Iowa, 245, 110 N. W. 577.”

In Foley v. Cudahy Packing Co., 119 Iowa, 246, 93 N. W. 284, 286, the jurors were asked this question: “Have you any connection of any kind with any casualty or employers' insurance company?” After which objection was made, overruled, and an exception taken.

In passing upon this ruling, this court made the following pronouncement: “It is common knowledge that many companies and corporations have been formed in this country for the purpose of, and are engaged in, the business of insuring employers of labor against damages growing out of personal injuries sustained by employees. Of necessity, such business is carried on by agents, and so it is that in most cities and towns one or more of such agents can be found. It is easy to understand that the interests of such companies lie on the defensive side of cases such as the one at bar. And if the defendant happen to be insured in some one or more of such companies, the interest becomes a direct and active one. That a defendant in an action of this character may be insured in some such company is immaterial of itself. But it is manifest that a plaintiff may not desire to have the jury which is to try his case made up, in whole or in part, of the agents or employees of such an insurance company. The fact of such employment would not constitute a ground of challenge for cause, but, as parties and their counsel cannot be expected to know personally every juror who may be called into the box, an examination sufficiently broad should be permitted to enable a party to determine upon his peremptory challenges. ‘It is the general and well-established practice to allow considerable latitude in the examination of persons called to act as jurors, not only to facilitate the discovery of grounds for cause, but to enable the parties interested to discover any peculiarity or conduct, association, character, or opinion, or any predilection, of the person under examination, or other circumstance which, in the opinion of the examiner, might influence the person as a juror, and affect his verdict.’ State v. Dooley, 89 Iowa, 584, 57 N. W. 414. Such examinations must be left largely to the sound discretion of the trial court, and it is only when an abuse of such discretion is clearly shown that this court is authorized to interfere. The ruling complained of does not involve any such abuse of discretion.”

In Brusseau v. Lower Brick Company, 133 Iowa, 245, 110 N. W. 577, 578, in passing upon this question, this court said: “The jurors were examined on voir dire with respect to their connection with any employer's casualty insurance company. A like examination was approved in Foley v. Cudahy Packing Company, 119 Iowa, 246, 93 N. W. 284, and since then has been upheld by the Supreme Court of Wisconsin. Howard v. Beldenville Lumber Company, 129 Wis. 98, 108 N. W. 48. See, also, Antletz v. Smith, 97 Minn. 217, 106 N. W. 517. The inquiry was rightly permitted.”

In Flick v. Globe Manufacturing Company, 172 Iowa, 561, 154 N. W. 928, 930, the plaintiff was permitted to ask each of the jurors whether he was a stockholder in any casualty insurance company or connected in any way with such company, or whether any of his relations were so employed or interested; and relative thereto, and as to a requested instruction thereon, this court made the following pronouncement: “And of this the defendant complains because, counsel say, the jury were thus informed, or must have inferred, that defendant was protected against liability by insurance. Although making this point in the assignment of errors, defendant in argument admits that such inquiries have been held competent [citing cases], although the fact that the defendant is so insured is not competent evidence to go to the jury on the trial of the issues in the case. It is said, however, that, this examination of the jurors having been permitted, the court should have instructed the jury that there was no evidence before...