Smith v. Hanewinckel, 40676
| Decision Date | 06 July 1965 |
| Docket Number | No. 40676,40676 |
| Citation | 1965 OK 113,405 P.2d 99 |
| Parties | Chester SMITH and L. J. Smith, Plaintiffs in Error, v. Erwin HANEWINCKEL, Administrator of the Estate of Lula Hanewinckel, Deceased, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
Where plaintiff's counsel effectually informs the jury that defendants are protected by liability insurance, whether accomplished inadvertently or intentionally, such conduct is prejudicial to the rights of the defendants, and this Court will review the evidence and grant appropriate relief either by directing a remittitur or by ordering a new trial.
Appeal from District Court of Oklahoma County, on transfer from Superior Court of Oklahoma County; G. Michael Tapp, Trial Judge.
Defendant in error obtained a verdict and judgment against plaintiffs in error in an action to recover damages for personal injuries, medical and funeral expenses, and wrongful death. Plaintiffs in error appeal from the order overruling their motion for a new trial. Reversed with directions.
V. P. Crowe, Paul R. McDaniel, Andrew M. Coats, Crowe, Boxley, Dunlevy, Thweatt, Swinford & Johnson, Oklahoma City, for plaintiffs in error.
Cargill, Cargill, Chiaf, Rudkin & Cargill, by John Chiaf, Oklahoma City, for defendant in error.
Erwin Hanewinckel, Administrator of the Estate of Lulu Hanewinckel, deceased, commenced proceedings to recover damages for personal injuries, medical and funeral expenses and wrongful death of decedent, against Chester Smith and his wife, L. J. Smith. Plaintiff is the surviving husband of decedent and the father of defendant L. J. Smith, and the father-in-law of defendant Chester Smith. The accidental injury forming the basis for the action was allegedly sustained while decedent was visiting in defendants' home.
The jury returned a verdict in favor of the Administrator and judgment was rendered thereon. Defendants' motion for judgment notwithstanding the verdict and motion for a new trial were overruled and they have perfected the present appeal.
Defendants contend that trial court erred as a matter of law in overruling their motion for a mistrial and for a continuance where the misconduct of plaintiff's attorney brought to the attention of the jury the fact that defendants were protected by liability insurance.
Plaintiff states that Plaintiff argues that the matters and things of which defendants seem to be concerned, primarily took place before a jury that did not try the case and that there is nothing in the record that even by inference suggests that the jury trying the case had information that defendants were covered by liability insurance.
The record discloses three jury panels were called. The first two panels were discharged after the trial court sustained defendants' motions to declare mistrials. A The reporter did not record the voir dire examination of the first jury panel that was discharged. However, the record does contain the testimony of attorneys who testified concerning the events which formed the basis for defendants' motion to declare a mistrial. Defendants' attorney testified that plaintiff's attorney displayed an insurance policy to the jury and on voir dire examination asked the prospective jurors if they owned stock in any company; and that if they gave an affirmative answer, the next question, without any preliminary questions was; 'do you own stock in the Farmers Home Mutual Insurance Company?' Plaintiff's attorney admitted he had the insurance policy with him but denied that the same was ever in view of the jury or that he ever displayed the same to the jury panel. The trial court was of the view that defendants had established a right to a mistrial, sustained defendants' motion for a mistrial, and discharged the first jury panel.
third jury panel was called; the jury was qualified; and the cause was submitted to it.
During the voir dire examination of the second jury panel defendants moved for a mistrial 'on the ground that the question propounded by counsel for the plaintiff and the answer given by the juror, so prejudices the rights of the defendants that they could not be granted a fair and impartial trial by injecting the question of liability insurance * * *.' The trial court sustained defendants' motion and declared a mistrial and discharged the jury panel.
After the trial court had declared a mistrial and discharged the second jury panel, defendants moved for a continuance and asked that the cause be stricken from the jury them. The trial court overruled this motion and the third jury panel was called.
In the voir dire examination of the third jury panel, plaintiff's counsel stated, '* * * as far as Mr. Hanewinckel's daughter and son-in-law here, there is no animosity here, * * *.' Defendants' counsel did not object to this statement. Plaintiff's counsel pointed out that the action was by a father against his daughter and son-in-law for injuries and resulting death of defendant daughter's mother and then asked if the jurors would have any prejudice in bringing such action and stated:
'Now, this is a legal--in other words for us legally to recover, this is the procedure that we have to go through and you would have to go through.'
The trial court sustained an objection to the form of the question. One of the jurors was excused when he stated he would not go through the legal proceedings.
On further voir dire of the jury, plaintiff's counsel stated: 'Now, maybe it would help to let you know there is no animosity between either side, you understand that, * * *.' No objections were made to this statement. After another juror was excused when he stated he would not bring such an action, another prospective juror was called and plaintiff's counsel again advised the jury that, 'Now, you understand that these people are friendly here. * * *.' a prospective juror answered 'yes' and plaintiff's counsel stated, 'Nobody is mad * * *.'
Plaintiff's counsel asked the jury panel if they knew any of the lawyers and then stated: Defendants' counsel moved for a mistrial and stated: The motion was overruled and the trial court admonished plaintiff's counsel '* * * to refrain from further reference to the fact that there is no animosity between the parties.'
Prospective juror Mrs. B was asked if she owned any stock in any corporation. She answered 'yes' and was rather hesitant about stating the type of stock. On On the voir dire examination of Mrs. C, who was engaged in the insurance business, she was asked if she would bring an action against her own daughter and son-in-law in order to procure a judgment. She answered, 'I would if----'. Plaintiff's counsel advised her she should answer the question, 'yes' or 'no', and she replied, 'For a given set of circumstances yes'. The record shows the jurors laughed. Plaintiff's counsel inquired, '* * * let's say under these circumstances.' Defendants' counsel moved for a mistrial and stated, Defendants' motion for a mistrial was overruled.
further examination she stated she owned automotive, steel, oil and utility stock, and plaintiff's counsel stated, '* * * I move to ask this juror--he is quite upset--I move to ask her whether she owns any stock in any mutual insurance company or any interest.' The trial court overruled the motion and asked Mrs. B if she had named all the various types of stock she owned and she answered, 'As far as I can think of now.' The trial court thanked her and plaintiff's counsel then stated, This motion was overruled.
On further voir dire examination of the jury panel, plaintiff's counsel again stated: 'You understand there is no animosity between the two of them, you understand that?' Defendants' counsel called the court's attention to the fact that it had specifically instructed plaintiff's counsel not to make that remark again and moved for a mistrial. This motion was overruled and the trial court admonished the jury.
Ordinarily, when an action is brought to recover damages for personal injuries, funeral...
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