Ryan v. Noble
| Decision Date | 27 April 1928 |
| Parties | RYAN v. NOBLE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Dade County; H. F. Atkinson, Judge.
Action by Roscoe Noble against M. F. Ryan. Judgment for plaintiff and defendant brings error.
Affirmed on condition of a remittitur.
Syllabus by the Court
Operator of automobiles for hire, though not common carrier, is liable, under statute, for injury to employee by fellow-servant's negligence; employee not being negligent (Rev. Gen. St. 1920, §§ 4971-4974). One who operates automobiles for hire, though not a common carrier, held to be liable in damages, under the hazardous occupation statute for an injury to an employee that is proximately caused by the negligence of a fellow servant jointly engaged with the plaintiff in performing the act causing the injury when the plaintiff was not negligent.
When damages awarded are excessive, remittitur may be required or case reversed for new trial; $6,000 for injury to employee requiring amputation of index and second fingers of right hand held excessive by $1,000. When the damages awarded are excessive, a remittitur may be suggested as an alternative to reversal for new trial.
In tort action for damages, plaintiff may on voir dire question juror as to interest in company insuring defendant. Plaintiff in an action in tort for damages where the defendant is protected against loss by casualty insurance is entitled on voir dire to ask such qualifying questions of prospective jurors as will protect him against accepting on the jury an agent or employee of such insurance company or any person interested therein.
Evidence that defendant sued for damages is protected by insurance is irrelevant and immaterial; existence of insurance protecting defendant sued for damages should not be made subject of comment in counsel's argument or statements in jury's presence or hearing. Upon the trial of an action at law for damages, evidence that the defendant is protected in whole or in part by insurance against any loss that may be visited upon him as a result of the trial is irrelevant and immaterial; nor is it proper for the existence of such insurance to be made the subject of comment in argument of counsel or statements made by them in the presence or hearing of the jury.
Jurors should be questioned as to their occupations without introducing existence of insurance protecting defendant. Both plaintiff and defendant are entitled to a fair, impartial and unprejudiced jury, and this object may be attained by securing the permission of the court to propound proper questions upon the voir dire examination as to the business or businesses in which the prospective jurors are respectively engaged or interested in, without introducing before such prospective jurors a collateral matter which does not concern the merits of the case and which they should not consider in determining the issues of facts to be submitted to them.
In tort action, plaintiff's counsel on voir dire examination should be permitted to ask questions showing prospective jurors' connection with insurance company protecting defendant; care being exercised not to intimate that company would have to pay verdict. In actions for damages, where the defendant is indemnified or protected by a contract of insurance, counsel for plaintiff, on voir dire examination, should be permitted by the court to ask such questions as will elicit information as to whether or not any of the prospective jurors are connected in any way with the insurance company issuing the policy, but both counsel and the court should be careful, in ascertaining such facts, not to get before the jury facts which would tend to cause them to conclude that any verdict they might render against the defendant would be visited, not on him, but upon some invisible corporation whose business it is to stand for and pay such damages.
C. L. Brown, of Miami, for plaintiff in error.
Shipp, Evans & Kline, of Miami, for defendant in error.
The declaration in substance alleges that Noble was in the employ of Ryan who was engaged in the occupation of operating automobiles for public use; that one of defendant's trucks was transporting steel grips or beams; that plaintiff with six other employees of defendant, Ryan, was engaged in unloading said steel grips or beams from said truck; that the said seven employees of defendant lifted a beam and five of the employees having hold of the grip or beam suddenly loosened their hold and let the beam drop, due to the carelessness and negligence of the said five employees, which injured plaintiff by so mashing the index and second fingers of his right hand as to make it necessary to have them amputated; that plaintiff was wholly without fault in the premises; damages in $15,000 were claimed; a demurrer to the declaration was overruled; pleas were filed of not guilty; that the defendant was not engaged in the occupation of operating automobiles for public use, but was engaged in a private business or enterprise of hauling material from the docks to a stated gas plant by virtue of a stated private contract; assumption of risk; that the injury and damage were caused by the negligent act of plaintiff's fellow-servants; that the injury was caused by the negligence of the plaintiff and of a fellow-servant who were jointly engaged in performing the act causing the injury, and defendant was guilty of no negligence contributing to such injury. Issue was joined on the pleas. Trial resulted in a verdict and judgment for $6,000 damages. Motions for judgment non obstante veredicto and for new trial were denied. Defendant took writ of error.
The statute provides that persons, firms, and corporations engaged in 'operating automobiles for public use,' shall be liable in damages for injuries inflicted upon their agents and employees, caused by the negligence of such persons, firms, and corporations, their agents and servants, unless such persons, firms, and corporations 'shall make it appear that they, their agents and servants have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against such persons, firms and corporations'; that such employers shall not be liable in damages for injuries to their employees 'where same is done by their consent, or is caused by their own negligence.' If the employer and employee 'are both at fault, there may be a recovery, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to both: Provided, that damages shall not be recovered for injuries to an employee injured in part through his own negligence and in part through the negligence of another employee, when both of such employees are fellow-servants, where the former and the latter are jointly engaged in performing the act causing the injury and the employer is guilty of no negligence contributing to such injury.' 'The doctrine of assumption of risk shall not obtain * * * where the injury * * * was attributable to the negligence of the employer, his agents or servants.' Sections 4971, 4972, 4973, 4974, Rev. Gen. Stats. 1920.
There is legally sufficient substantial evidence upon which to predicate the finding necessary involved in the verdict, that the defendant was 'operating automobiles for public use'; that the injury was proximately caused by the negligence of the defendant's employees who were the plaintiff's fellow-servants jointly engaged with plaintiff in performing the act causing the injury; and that the plaintiff was not negligent.
The defendant might not have been a common carrier, but he was engaged in operating automobiles for hire to those with whom he contracted and he contracted with members of the public as he desired. That satisfied the purpose and intent of the statute.
No harmful error appears in charges given or refused, and no abuse is shown in questioning proposed jurors as to their connection with or relation to or interest in insurance companies in testing the qualifications of the jurors. The verdict appears to be excessive. If the plaintiff below within 30 days remits $1,000 as of the date of the verdict, the judgment will stand affirmed for the balance; otherwise, the judgment will stand reversed for a new trial.
It is so ordered.
I concur in the opinion that no reversible error appears and the judgment should be affirmed, but I am not satisfied that the record is free from error in the matter of the questioning of the proposed jurors as to their connection with or interest in insurance companies and the statement made by counsel for plaintiff in the hearing of the jurors preliminary thereto. While the error may not be so presented in this case as to be reversible, I think it involves an important question which requires some consideration.
It appears that the plaintiff in the court below had served on the defendant notice to produce at the trial all insurance policies taken out by the defendant for the purpose of indemnifying him against loss or damage in the operation of automobiles or automobile trucks for hire, and the original application made by the defendant for such insurance, and all canceled checks given in payment of premiums for insurance indemnifying the defendant against loss or damage in the operating of the automobile truck involved in this case. As these documents were not shown to be admissible in evidence under the issues, and as there was no privity of contract between the plaintiff and any insurance company the defendant might have contracted with, the...
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