Stevens v. Wright Contracting Co.

• Citation: 92 Ga.App. 373,88 S.E.2d 511
• Decision Date: 16 June 1955
• Docket Number: Nos. 35579,Nos. 1,2,35588,s. 35579,s. 1
• Parties: Ruth STEVENS v. WRIGHT CONTRACTING COMPANY. WRIGHT CONTRACTING COMPANY v. Ruth STEVENS
• Court: United States Court of Appeals (Georgia)

Page 511

88 S.E.2d 511

92 Ga.App. 373

Ruth STEVENS v. WRIGHT CONTRACTING COMPANY.

WRIGHT CONTRACTING COMPANY v. Ruth STEVENS.

Nos. 35579, 35588.

Court of Appeals of Georgia, Division Nos. 1, 2.

June 16, 1955.

Rehearing Denied July 7, 1955.

Syllabus by the Court.

1. Where, as here, the testimony at the hearing in the absence of the jury showed without dispute that the attorney representing the defendant was employed and to be paid by a named insurance company, and that the claim investigator of the insurance company together with the attorneys for the plaintiff and the defendant had taken the depositions of witnesses to be used on the trial of the case, the trial court erred in refusing to qualify the jury panel with respect to their interest in the insurance company.

2. The plaintiff's motion for new trial not containing any general grounds, and the sole special ground complaining only of the refusal of the trial court to qualify the jurty panel as to their interest in a named insurance company, the court did not err in denying the defendant's motion to dismiss the motion for new trial on the ground that no brief of the evidence had been submitted, since a brief of the evidence adduced on the trial of the case was unnecessary for a consideration of the motion for new trial.

Mrs. Ruth Stevens filed in the City Court of Columbus, against Wright Contracting Company, a petition for damages sustained as a result of driving her automobile into a ditch it had caused to be cut across the paved portion of a highway it was constructing. After the trial court qualified the jury as to the plaintiff and as to the defendant, the following took place outside the hearing of the jury:

'By Mr. Stubbs: Your honor, after the jurors had been assembled in the court room in this case, and after they had been called and after they had been sworn as jurors, counsel for the plaintiff stated in open court and in the presence of the assembled jurors in substance the following statement after being asked if he desired to make inquiry about the jury: 'Your Honor, we want to inquire about Liberty Mutual Insurance Company.' Now, if your honor please, that was a highly prejudicial statement, in so far as the defendant's case is concerned. It was made in the presence of the jury, which was highly improper, irregular, prejudicial. In view of these facts, the defendant moves at this time to discharge the entire panel of jurors and to summons or call another panel of jurors to try this case. Furthermore, the defendant moves in the alternative, in the event your honor should deny that motion, to continue this case for the term. We feel that it would not be possible for this defendant to get a fair, impartial, unprejudiced, unbiased trial before the present panel of jurors. That is our motion.

'By Mr. Fort: May it please the court: That motion is entirely without any merit. I will state in my place that we have for some four or five months been dealing with Mr. Stubbs and with the agents of Liberty Mutual Insurance Company, that we have made a trip to take the deposition of our client in which the agent, investigator and claim man for Liberty Mutual Insurance Company was along. There has never been any secrecy between us as to the fact there is insurance. I have never seen the policy. We have discussed insurance with Mr. Stubbs and with the agent at length. I will state in may place that it is my firm belief that the insurance carrier for Wright Contracting Company is Liberty Mutual Insurance Company of Boston; that neither Mr. Stubbs nor the Liberty Mutual agent has ever denied they have the coverage.

'By the Court: I think, Mr. Fort, an objectionable feature, you had a method of getting that before the court by subpoena duces tecum. There is nothing before the court to pass on on the question of insurance. Mr. Stubbs, I doubt seriously that any member of the jury actually heard the question that Mr. Fort asked. Of course, there is no way for me to determine unless we go into the matter further.

'By Mr. Fort: We want the court to ask it, your honor.

'By the Court: I can't ask it unless there is some evidence before me.

'By Mr. Fort: Will your honor permit me to examine Mr. Stubbs as to his employment? He is a competent witness. He will tell us who employs him in this case.

'By Mr. Stubbs: I will not permit counsel to go into the contents of any documents.

'By Mr. Fort: I will ask him if he is employed by Wright Contracting Company, and if he is I will withdraw the question.

'By the Court: I don't think you could proceed in that manner.

'By Mr. Fort: We could put Mr. Wright on the stand and ask him if Liberty Mutual Insurance Company is paying for it.

'By the Court: As it is how there is nothing before the court but you have asked a question about insurance.

'By Mr. Fort: I am asking the court to let me put the attorney on the stand and ask him who he is looking to for his fees in this case.

'By the Court: I am going to overrule Mr. Stubbs' motion. I am not going to submit the question pertaining to the insurance carrier. You gentlemen strike a jury and I will tell them to report * * *

'By Mr. Fort: I woud like to get my side in the record.

'By the Court: There is nothing before the court to pass on.

'By Mr. Fort: Let me ask this question. I am moving the court now to permit me to ask Mr. Stubbs--and I don't care about him being under oath--who is paying his fee in this case, by whom he is employed, and who will pay the judgment in case one is rendered against Wright Contracting Company.

'By the Court: You can ask Mr. Stubbs any questions you want to. I don't have any objections to you talking to him at length.

'By Mr. Fort: I want to put it in the record. Mr. Stubbs, I will waive the oath.

'By Mr. Stubbs: If I am going to be questioned I had rather be put under oath and be put on the stand because I want the right to object to any improper questions.

'Albert W. Stubbs, being sworn, testified as follows:

'Examination by Mr. Fort: Q. Mr. Stubbs, by whom are you employed in this case? A. I am employed by the Liberty Mutual Insurance Company.

'Q. Whom are you looking to for the payment of your fee? A. Colonel, I am at the moment not looking to anybody for the payment of my fee for it has not been earned yet, but I am working for the Liberty Mutual Insurance Company in this case.

Q. Do you recall the occasion we went to take testimony by deposition of Mrs. Stevens? A. Yes, sir.

'Q. Did Mr. Wade Tomlinson go with us? A. He did.

'Q. Is Mr. Wade Tomlinson claim agent for the Liberty Mutual Insurance Company? A. He is.

'Q. Has Mr. Tomlinson made some investigations in this case? A. Yes, sir.

'Q. Is the Liberty Mutual Insurance Company the carrier for Wright Contracting Company?

'By Mr. Stubbs: If your honor please, I object to this question for the reason that the document of insurance * * *

'By the Court: I sustain the objection.

'By Mr. Stubbs: (Continuing)--would be the best evidence.

'By Mr. Fort: Q. Do you know why you are employed by Liberty Mutual Insurance Company if it had no interest in this case? A. I don't know why I am employed by Liberty Mutual Insurance Company. I didn't ask them why. I am glad to get the case.

'Q. Then Liberty Mutual Insurance Company has an interest in this case, doesn't it? A. I couldn't say, Colonel, other than the facts I have already testified.

'Q. They are employing the attorneys to defend the case? A. I have so testified.

'By Mr. Fort: I think that is sufficient to show their interest in this case.

'By Mr. Stubbs: Is that all, Colonel?

'By Mr. Fort: Yes, sir, unless the court has something.

'By the Court: That is all. You can strike a jury now.

'By Mr. Fort: I think this is highly prejudicial to us. There is no law in the world that we would have to produce any papers.

'By the Court: I don't think it will prejudice the case at all.

'By Mr. Fort: May it please the court: In order to protect the rights of the plaintiff in this case, at this time we move the court for permission to examine the jury, first as a panel or as an entire group with reference to the relationship or interest of any of the jurors in the Liberty Mutual Insurance Company. The record already shows that the attorney representing the interest of the defendant, Wright Contracting Company, is employed by Liberty Mutual Insurance Company. We have also stated that for several months we have been investigating and conferring with the claim agent of Liberty Mutual Insurance Company, and with Mr. Stubbs, the attorney, and it has never been denied that the insurance company had an interest in the case. On the contrary, we have discussed the matter with the assumption that Liberty Mutual Insurance Company has the insurance coverage. If the court should deny our request to challenge the panel with reference to their interest or relationship to Liberty Mutual Insurance Company, then we move for the right to challenge each juror under the provisions of Code, § 59-705, as set out in the 1951 pocket part. In order to aid the court on this ruling we will state that we request the right to question each juror under this section with reference to his interest in Liberty Mutual Insurance Company. In view of the fact that it is admitted in the record that the insurance company is paying or has employed the attorneys representing Wright Contracting Company, we would like to examine each juror individually with reference to his interest or connection with Liberty Mutual Insurance Company. That is our motion, your honor.

'By the Court: Anything else to go in the record?

'By Mr. Stubbs: No, sir, nothing else to go in the record.

'By Mr. Court: Mr. Fort, has any subpoena been requested or served by you on the Liberty Mutual Insurance Company affecting this policy?

'By Mr. Fort: None has.

'By the Court: All right. I overrule the motion.

'By Mr. Fort: I would like to explain that answer, your honor. We have not...