Stehura v. Short
| Decision Date | 14 February 1974 |
| Citation | 39 Ohio App.2d 68,315 N.E.2d 492 |
| Parties | , 68 O.O.2d 222 STEHURA, Admr., Appellant, v. SHORT, Appellee. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
When defense counsel propounds a question on voir dire examination falsely implying that his client is uninsured, the potentially prejudicial effect on the prospective jurors is of such magnitude that instructions, three days later, by the trial court in its general charge to the jury, not directed to the specific improper remarks, are insufficient to cure the manifest prejudice occasioned by the jurors' exposure to the deceptive, and potentially prejudicial extrinsic statements. Such action constitutes reversible error.
Steven A. Sindell, Cleveland, for appellant.
Richard F. Stevens, Cleveland, for appellee.
Appellant filed suit for personal injuries and wrongful death of Joan Stehura, a minor allegedly caused by the negligent operation of an automobile by appellee, Donald Short. The action was filed by appellant as administrator of decedent's estate. The case came on for trial on October 31, 1972.
During the voir dire examination, Mr. Sindell, counsel for plaintiff appellant, exercised a preemptory challenge excusing Mr. Elliott, a risk consultant, from the panel of prospective jurors. The following colloquy occurred while counsel for defendant appellee was questioning Mr. Nakanishi, the prospective replacement for Mr. Elliott on the jury panel:
'Mr. Hodsen: Now, since I am sure you were listening to all the other questions, Mr. Nakanishi, you may recall that Mr. Sindell asked certain questions to Mr. Elliott and to other members of the panel about his associations in the risk management work with insurance companies and so forth?
'Mr. Hodsen: 'Well, in that regard, and I would address this to everybody, but in that regard, would you be able and willing to approach this case on the basis that it's a lawsuit strictly between Mr. Stehura and the family and Mr. Short and that except for the fact that there are attorneys here, there is no other person, firm or corporation involved in this case?
'Mr. Sindell: I object to that, your Honor, and move for mistrial.
'(Thereupon the following proceedings were had outside the hearing of the jury):
'Mr. S. Sindell: Your Honor at this time I'd like to make a motion for a mistrial on the grounds that the defense counsel, in my view, has suggested to the jury that-
'The Court: Quieter.
After a side bar discussion the court overruled appellant's motion for a mistrial. As an alternative to declaring a mistrial, appellant then requested that the court give a cautionary instruction to the jury. The court responded: 'The jury will be instructed at the proper time.' Whereupon, the appellant requested an immediate instruction. This request was also overruled.
The jury returned a verdict for the defendant. Plaintiff appeals, assigning one error:
'The Trial Court erred in refusing to grant appellant's motion for a mistrial or, in the alternative, to give a cautionary instruction to the jury immediately when, during the voir dire counsel for Defendant-Appellee suggested to the jury that his client was uninsured, which was contrary to fact, and prejudicial to appellant's case.'
For the reasons detailed in the following discourse, we find merit in appellant's assignment of error.
Knowledge of defendant's insurance has traditionally been treated as fruit of the forbidden tree. Courts have consequently guarded juror's ears from statements tending to show that the defendant in a negligence action carried liability insurance. Annot., 4 A.L.R.2d 761 (1949). The rationale for thus 'protecting' the jurors is that the trial should be heard and determined by a jury of persons completely unbiased and uninfluenced by extrinsic considerations. Peart v. Jones (1953), 159 Ohio St. 137, 111 N.E.2d 16. The rule prohibiting the forbidden knowledge of insurance from poisoning the minds of the jurors has been relaxed to a degree during voir dire to insure the selection of an unbiased panel of jurors. Therefore, counsel for plaintiff has the right to interrogate prospective jurors on voir dire as to (1) whether they are connected with an insurance company; (2) the extent of their connection, as long as these questions are propounded in good faith. Dowd-Feder v. Truesdell (1936), 130 Ohio St. 530, 200 N.E. 762.
Even this limited right of plaintiff's counsel to inquire on voir dire as to prospective juror's connection with an insurance company has been held to be subject to the sound discretion of the trial judge. Accordingly, Krupp v. Poor (1970), 24 Ohio St.2d 123, 265 N.E.2d 268, held that it was not an abuse of discretion for the trial court to prevent inquiry as to prospective juror's connection with an insurance company where the trial court had been informed that one defendant was insured and the other defendant was uninsured.
In granting plaintiff's counsel a limited right to mention insurance on voir dire, the Supreme Court of Ohio struck a delicate balance between plaintiff's right to '* * * reasonable safeguards against obtaining a jury composed of men and women having insurance connection * * *,' and defendant's right to a trial free from '* * * possible prejudice which interrogation concerning the jury's interests may tend to provoke.' Dowd-Feder v. Truesdell, supra, at 535, 200 N.E. at 763. We find no indication that the Supreme Court of Ohio now intends to readjust this delicate balance by permitting defense counsel to reply to the limited inquiry permitted plaintiff's counsel as was done by defense counsel in the case at bar. In fact a recent decision held that after plaintiff's counsel had inquired on voir dire regarding prospective jurors' connection with an insurance company, it was improper for defense counsel to retort by informing the jury that the defendant was not insured. DuPriest v. Spatz (1971), 26 Ohio St.2d 264...
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