Shelby County v. Baker

• Decision Date: 09 April 1959
• Docket Number: 7 Div. 386
• Citation: 269 Ala. 111,110 So.2d 896
• Court: Alabama Supreme Court
• Parties: SHELBY COUNTY v. Claire M. BAKER, as Admrx., et al.

Page 896

110 So.2d 896

269 Ala. 111

SHELBY COUNTY v. Claire M. BAKER, as Admrx., et al.

7 Div. 386.

Supreme Court of Alabama.

April 9, 1959.

Maurice F. Bishop, Birmingham, and Handy Ellis, Columbiana, for appellant.

Wales W. Wallace, Jr., and Karl C. Harrison, Columbiana, for appellees.

SIMPSON, Justice.

This cause comes to this court on appeal from the Circuit Court of Shelby County from a jury verdict and judgment thereon and the overruling of appellant's motion for a new trial in an eminent domain proceeding instituted by Shelby County to acquire land for public highway purposes under § 1 et seq. of Title 19, and § 25 of Title 23, Code 1940.

The only question involved on trial was the amount of damages and compensation to which the owners were entitled. The jury returned a verdict for $8,000. From that verdict, the judgment thereon, and the denial of its motion for a new trial, the county has taken this appeal.

The questions presented on this appeal concern what appellant alleges were various erroneous rulings on the evidence, improper argument, and ineradicably prejudicial statements made by counsel for appellees during the course of the trial. Appellant asserts that those errors lead to a reversal of the case. Appellant does not contend that the amount of the award was excessive, but we assume it implies that the alleged erroneous rulings in some way affected the valuation fixed by the jury.

Appellant has assigned thirty separate grounds as error, but has argued them in groups, so as to make available to this Court application of the rule that where assignments of error not kindred in nature are argued together and one of them is without merit, the others in the group will not be examined. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594; Taylor v. Taylor, 251 Ala. 374, 37 So.2d 645; Moseley v. Alabama Power Co., 246 Ala. 416, 21 So.2d 305. However, many of the assignments seem to be somewhat kindred, and, in deference to counsel, we will consider them.

Assignments 1, 23, and 28 were not argued in brief by the appellant and are waived. Rule 9 of the Supreme Court Rules of Practice, Appendix, Pocket Part, Title 7, Code 1940.

We will first consider Assignments 2 and 3. After the Court had qualified the venire by inquiring, among other things, whether any member of the jury was employed by or otherwise connected with the petitioner, Shelby County, or was employed by the State of Alabama, the following colloquy occurred:

'By Mr. Wallace: We ask permission to question the jury as to their connection with the Federal Government. If you have any questions the Court will give you permission to do that.

'By Mr. Harrison: Is there any member of this jury employed by the Federal Government?

'By Mr. Bishop: We object to that, may it please the Court.

'By the Court: Overrule the objection.

'By Mr. Bishop: We except.

'By Juror: I am.

'By the Court: What is your name?

'Juror: David Reynolds. I am employed at the Anniston Ordnance.

'By Mr. Wallace: We might at this time say that it is our understanding that the Federal Government has an interest in this law suit, and if we are wrong about it that question would be improper, and we ask counsel for the other side if they would furnish us information as to whether or not the acquiring of this right of way would be reimbursed in any part by the Federal Government.

'By Mr. Bishop: We object to that, may it please the Court, and ask this Court to declare a mistrial in this case.

'By the Court: No sir, the Court will not declare a mistrial.

'By Mr. Bishop: We except.

'By Mr. Wallace: This is like an insurance company----

'By Mr. Bishop: This isn't any insurance case.

'By Mr. Wallace: Like an insurance company where a person is insured for liability insurance. You question the jury as to whether or not they have any interest. Now, in this case we don't know for certain that the Federal Government does have an interest and ordinarily the other side informs you of that fact when you ask them. If we can't get that information we have no other recourse than put Mr. Bishop or Mr. Ellis on the stand and ask them whether or not the Federal Government would pay any part of the condemnation award that this jury might issue in this case.

'By Mr. Bishop: We object to that statement, and particularly object to the comparison of this proceeding with anything analogous to any insurance or liability insurance. The only purpose in the world for that is an attempt to prejudice the minds of these gentlemen who would be calculated to serve on this jury. We object to it, and we ask the Court--as this Court well knows there is no insurance in this case, and they have so admitted there is no insurance in this case. So, obviously the only purpose of it is prejudicial effect, and we move at this time again for a mistrial on that ground, regretfully so, but it appears they want to continue to inject those inflamatory suggestions in the minds of this jury--these gentlemen who are calculated to serve on this jury, and we think it is highly improper, and we move again for a mistrial.

'By the Court: The motion is denied.

'By Mr. Bishop: We except.

'By Mr. Wallace: We offer, Your Honor, to put Mr. Bishop on the stand and ask him the direct question whether or not the Federal Government would be liable to pay any part of the condemnation award that this jury renders in this case, as it would show that they were the real party in interest in this case. There is a case up here in St. Clair County where they were not able to find out who the ultimate person was who was to pay the award, and upon refusal of other counsel they put him on the stand, and asked him the question. I would like to say to the Court we resent strenuously his saying we are trying to inflame the minds of this jury by saying they are an American citizen working for the Federal Government. We resent that strenuously. We are merely trying to see who the real party in interest is; who is going to pay this award which the jury renders.

'By the Court: This is a suit by Shelby County condemning this right of way for a road.

'By Mr. Wallace: For the record, Your Honor, we offer to put Mr. Bishop, the attorney of record for the condemnor, on the stand and ask him the specific question as to whether or not the Federal Government would be liable for any judgment which this jury might render in this case, and we offer at this time to do so.

'By the Court: I deny your motion.

'By Mr. Wallace: We except, Your Honor.'

Appellant insists that the trial court erred in overruling its motion for a mistrial based upon the allegedly prejudicial statements of counsel for the appellees made during that colloquy referring to the federal government and the suggested payment by it of any award. Appellant also urges that error was committed at that point during the voir dire examination of the prospective jurors when the court failed to grant a mistrial based upon the reference to the subject of liablity insurance by counsel for the appellees.

Either party in both civil and criminal cases 'shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.' Title 30, § 52, Code 1940. Under this statute it has been held that the rights thereby given are to be exercised within the sound discretion of the court. The inquiry permitted should be liberal and extend to any and all matters touching the qualification, interest, or bias of prospective jurors. This code section 'gives to parties having respective peremptory challenges or the right to a struck jury, the right within the limits of propriety and pertinence to reasonably propound questions to jurors to enable such party or his counsel to intelligently exercise that right, though the matters of which inquiry is made are not a disqualification.' Dyer v. State, 241 Ala. 679, 4 So.2d 311, 313; Cox v. Bennott, 250 Ala. 698, 36 So.2d 86; Redus v. State, 243 Ala. 320, 9 So.2d 914; Rose v. Magro, 220 Ala. 120, 124 So. 296. 'The right of inquiry under the statute is a broad right just so it is not exercised in bad faith or merely designed to prejudice the case.' Cox v. Bennett, supra [250, Ala. 698, 36 So.2d 88]; Duke v. Gaines, 224 Ala. 519, 140 So. 600.

Close scrutiny of the statements made during this voir dire colloquy fail to impress us that counsel for appellees exhibited bad faith or attempted to, or did, prejudicially influence the case in either of the respects urged by the appellants. A proper subject of inquiry on voir dire examination is whether any of the jurors were city employees in a matter in which that municipality is or was interested. Rose v. Magro, supra; Nix v. City of Andalusia, 21 Ala.App. 439, 109 So. 182; City of Birmingham v. Lane, 210 Ala. 252, 97 So. 728. By analogy, if the federal government had an interest in the suit which might have some bearing upon the bias of a juror by virtue of its program of assistance to the states in the construction of roads, then such relationship would be a legitimate subject of inquiry.

See also Housing Authority of City of Decatur v. Decatur Land Co., supra, which involved a proceeding for condemnation of realty by the housing authority of the city of Decatur, where we held that evidence that money for the project would be obtained from the federal government would have value on cross-examination bearing on the credibility of the opinion of a witness relative to the cost of a drainage project.

We are also persuaded that appellees were not trying to inject the question of insurance into the case, as appellants claim. The remarks of counsel for appellees concerning insurance were undoubtedly analogizing the legal problem raised by appellant's objection against asking the jurors about any employment...