Redman v. McDaniel
| Decision Date | 18 November 1958 |
| Docket Number | No. 37881,37881 |
| Parties | W. H. REDMAN and Virgil Nichols, Plaintiffs in Error, v. Delbert A. McDANIEL, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The parties have a right to question prospective jurors on their business connections, among other things, in order to determine their fitness in the particular case, and this includes the matter of insurance companies when there is occasion to inquire thereon, but where plaintiff's counsel does not follow the practice of asking general preliminary questions in void dire as recommended in Safeway Cab Service Co. v. Minor, 180 Okl. 448, 70 P.2d 76, and explained herein, and unnecessarily and effectively suggests that the loss would fall upon an insurance company, prejudice results, and this court will review the evidence and grant appropriate relief either by directing a remittitur or by ordering a new trial.
Appeal from the District Court of Kingfisher Co.; Tom R. Blaine, Judge.
Action by Delbert A. McDoniel against W. R. Redman and Virgil Nichols. Judgment for plaintiff, and defendants appeal. Reversed and remanded for new trial.
Shutler, Shutler & Baker, Kingfisher, Pierce, Mock & Duncan, Oklahoma City, for plaintiffs in error.
Bryan Billings, Woodward, and Looney, Watts, Looney & Nichols, Oklahoma City, for defendant in error.
This action was instituted in the trial court by Delbert A. McDaniel, as plaintiff, against W. H. Redman and Virgil Nichols, as defendants, for personal injuries sustained by plaintiff when plaintiff's vehicle collided with a vehicle owned by the defendant, Redman, at a highway intersection in Kingfisher County, Oklahoma. From verdict and judgment for plaintiff, defendants appeal. The parties will be given their trial court designations.
In defendants' first proposition for reversal it is asserted that the trial court erred in refusing to grant the defendants' motion for a mistrial based upon the repeated reference to insurance made by counsel for the plaintiff in the course of the voir dire examination.
In pre-trial conference the trial judge sought to determine whether plaintiff's counsel would inquire of prospective jurors as to whether they were interested in any type of insurance. At that time plaintiff's counsel stated that he had not made any decision on that point but was of the opinion that if he asked any questions in this regard they would relate to whether any members of the jury were interested in writing public liability insurance, or any type of insurance. Counsel for defendants insisted that the rule in Safeway Cab Service Co. v. Minor, infra, shoudl be followed and stated that a motion for mis-trial would be made if plaintiff mentioned anything about insurance in voir dire examination. Although the trial judge indicated a desire to have some agreement reached in pre-trial conference as to the procedure to be followed, it does not appeal from the record that the problem was settled.
In Lee v. Swyden, Okl., 319 P.2d 1009, decided December 24, 1957, and subsequent to the trial of the instant case, the plaintiff sought by motion to interrogate prospective jurors concerning their interest, if any, in the Oklahoma Farm Mutual Insurance Company and whether they, or any member of their families, carried a policy of insurance in that company. The trial court overruled that motion and stated that he would follow the rule announced in Safeway Cab Service Co. v. Minor, 180 Okl. 448, 70 P.2d 76. In that case we approved the action of the trial court and held that there was no error in the action of the trial court.
When the instant case came on for trial the first juror examined by plaintiff's counsel, after identifying himself by name, was asked: 'Are you interested in the insurance business?' The third, fifth, and eighth jurors, after locating their places of residence and giving their occupations as farming, were each asked: 'Are you interested in the insurance business?' The fourth, sixth, and ninth jurors, after locating their places of residence and giving their occupations as farming, were each asked: 'Do you have any other side-line or occupation?' All the foregoing questions were answered in the negative. The other jurors were either not questioned concerning insurance, or their examination is not shown in the record.
After defendants' counsel had objected to the questions concerning insurance and moved for a mistrial several times, plaintiff's counsel, outside the jury's presence, stated to the court:
'The attorney for the plaintiff in this case is a resident of Woodard County and is a stranger in Kingfisher County, not acquainted with any of the members of the jury panel summoned for services in this term of court; that the attorney for the plaintiff is informed that the defendants in this case are insured by the Oklahoma Farm Mutual Insurance Company, and it is the information of the plaintiff's attorney that this company has various farmers and other persons acting as its agents in this and other counties of northwestern Oklahoma, which business of writing insurance is carried on as a side-line and in addition to their occupation as farmers and other occupations.'
It is unnecessary to cite authorities for the principles of law involved in this case. In addition to numerous decisions from this court exhaustive annotations on the subject appear in 56 A.L.R. 1454; 74 A.L.R. 860; 95 A.L.R. 380; 105 A.L.R. 1319; and 4 A.L.R2d 761. Under the authorities it is well settled that plaintiff has a right to have a jury that is free from bias and prejudice. To secure that right it is also well settled that plaintiff is entitled to ask such questions as may be necessary, or become necessary, to enable him to discover whether a juror is interested in the insurance business, especially where he believes that some of the jurors may be writing insurance for an insurance company that he believes has written insurance for the defendants. But in doing so it is equally well settled in Oklahoma that he should not indicate to the jury that the defendant is protected by insurance unless it is necessary in order to obtain a jury free from favoritism toward the defendant. In the second paragraphs of the syllabi in Safeway Cab Service Co. v. Minor, 180 Okl. 448, 70 P.2d 76, and Lee v. Swyden, Okl., 319 P.2d 1009, 1012, supra, we held:
'The parties have a right to question prospective jurors on their business connections, among other things, in order to determine their fitness to sit in the particular case, and this includes the matter of insurance companies, when there is occasion to inquire thereon; but, in order to be in good faith in this respect, general preliminary questions should be asked which might elicit information making needless further questioning thereon.'
In the body of the opinion in Berry v. Park, 185 Okl. 118, 90 P.2d 425, we said that every precaution should be taken to restrain counsel from...
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