Ulmer v. Farnham, 4715.

• Decision Date: 20 May 1930
• Docket Number: No. 4715.,4715.
• Citation: 28 S.W.2d 113
• Parties: ULMER v. FARNHAM.
• Court: Missouri Court of Appeals

28 S.W.2d 113

ULMER v. FARNHAM.

No. 4715.

Springfield Court of Appeals. Missouri.

May 20, 1930.

Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.

"Not to be officially published."

Action by Lorene Ulmer against Lena Farnham. From a judgment for plaintiff, defendant appeals.

Affirmed on condition of remittitur, otherwise reversed and remanded.

Henson & Woody, of Poplar Bluff, for appellant.

Sam M. Phillips, of Poplar Bluff, for respondent.

BAILEY, J.

This is an action to recover damages for personal injuries sustained by plaintiff while riding as a guest in defendant's automobile. The accident occurred January 20, 1929, and is alleged to have been the result of defendant's negligence in driving around a curve on state highway No. 60, at such speed as to cause the automobile to leave the highway and plunge into a ditch.

The trial was to a jury, and resulted in a verdict and judgment for plaintiff in the sum of $3,000, from which judgment defendant has appealed.

Defendant first charges the trial court with error in overruling defendant's motion to quash the jury panel and declare a mistrial. Much of the record is taken up with showing in full what transpired on the voir dire examination of the jury, which is made the basis for this assignment. The record shows Mr. Phillips, counsel for plaintiff, first asked the jurors, collectively, the following question: "Q. I will ask you gentlemen if any of you are stockholders in the Aetna Insurance Company or if you are interested in that company in any way?" Thereupon Mr. Henson, defendant's attorney, objected to the question, for the reason "it is an attempt on the part of plaintiff to inject a false and prejudicial issue in the case, one not made by the pleadings and made under circumstances that make it very evident that the question is not asked in good faith. I move the discharge of the panel and the continuance of the case at this time." The jury was then temporarily excused and out of their presence Mr. Phillips made the following statement to the court, to wit: "A few minutes ago I asked across the table of Mr. Woody, counsel for defendant, whom they represented and he said that they were representing the Aetna Insurance Company, and in the voir dire examination, I inquired about that specific company." Thereupon Mr. Phillips was sworn and subjected to a lengthy examination as to his knowledge of the person and business of each and every juror. Without further comment on this phase of the examination, we are satisfied there was not sufficient proof to show a lack of good faith in asking the question heretofore set out. Defendant's motion to quash the jury panel was overruled. Mr. Phillips then proceeded with his voir dire examination of the jury as follows:

"Q. I will ask the entire jury this question: Are any of your relatives, or anyone in whom you are interested, associated with the Aetna Insurance Company in any capacity that you know of? A. (Juror Snider answered): I have some policies in that company. I think that is the company I have the insurance with.

"Q. What kind of policies? A. Liability. (Juror Henson replied): I may have also, but am not sure.

"Q. Do you know any of the agents of the Aetna Insurance Company — any of you? A. (Juror Snider replied): I knew Mr. Robinson.

"Q. Have any of you directly or indirectly represented the Aetna Insurance Company? A. (No answer from any one.)

"Q. Have any of you relatives or friends that have ever represented that company? A. (No answer from any one.)

"Q. Have any of you relatives or friends that now represent that company? A. (No answer from any one.)

"Q. Mr. Peterson, have you ever been in the insurance business? A. Yes, sir.

"Q. Are you in that business now? A. No, sir.

"Q. How long has it been since you were in the insurance business? A. It has been a little over a year.

"Q. What companies did you represent? A. I represented the United States Fidelity & Guaranty Company, and the Maryland Motor Power.

"Q. Did you sell insurance for both of these companies? A. Yes, sir.

"Q. You did that until about a year ago? A. Yes, sir."

The jurors were thereafter individually questioned by Mr. Henson, which examination disclosed that five of the prospective jurors were farmers, two small-town merchants, three real estate agents, two common laborers, one pool room proprietor, three carpenters, one coal dealer, and one agent for the Standard Oil Company. None were interested in any way in any insurance company.

The question forcefully presented by the foregoing record has been before the appellate courts of this state a great number of times. Defendant's learned counsel has cited a number of these cases in support of the proposition that the trial court erred in overruling defendant's motion to discharge the jury panel. We shall briefly refer to some of these cases. In Trent v. Printing Company, 141 Mo. App. 437, 126 S. W. 238, 242, a witness was asked by plaintiff's counsel, during the trial and before the jury, if a certain party investigating a personal injury case had not said that "he had been sent there by the insurance company to investigate the matter." This was held to be reversible error.

Where during the voir dire examination of the jurors they were asked by the attorney for plaintiff whether or not they were interest ed in a particular insurance company, not a party to the case, and later, in his address to the jury, counsel intimated the real defendant was not on trial, the appellate court upheld the action of the lower court in granting a new trial for that reason. Ganahl v. United Rys. Co., 197 Mo. App. 495, 197 S. W. 159. In Gore v. Brockman, 138 Mo. App. 231, 119 S. W. 1082, a doctor on trial in a malpractice suit was asked by plaintiff's counsel if he had not taken out "Doctors Protective Insurance." It was held the question was improper and highly prejudicial.

A case more nearly in point is that of Pilkerton v. Miller, 283 S. W. 455, decided by this court. In that case, the jury was asked, over defendant's objection, the following question: "I want to ask you this general question whether or not any of you gentlemen or any of your relatives are employed as agents or otherwise, or any of you or any of your relatives are stockholders in any insurance company that writes liability insurance to protect automobile operators?" In passing on the propriety of this question, Judge Cox, speaking for this court, said: "There is nothing shown in this record to indicate for what purpose these questions were asked of the members of the jury panel; nothing to indicate that such an insurance company was located in that vicinity, or that plaintiff or his counsel had any reason to believe that any man on the jury panel had any connection with such an insurance company. Asking such questions could not do otherwise than impress the jury that some insurance company was carrying a liability policy upon defendant's car, and, if judgment went against him, the insurance company, and not the defendant, would have to pay it. Without discussing the matter at length, suffice it to say that in our opinion that proceeding constituted reversible error." The question is thoroughly discussed and authorities cited in the case of Chambers v. Kennedy (Mo. Sup.) 274 S. W. 726, 729. In that case, one of the jurors was asked, on his voir dire examination, if he was interested in any manner, as a stockholder or otherwise, in the Continental Casualty Company, or any other insurance company engaged in writing liability insurance. After reviewing the authorities, our Supreme Court said: "There is no pretense that some local insurance company was concerned, or that stockholders or persons insured by such company were members of the panel. There was no attempt to show good faith in asking the questions as was shown in the Mann, Miller, and Reich Cases, supra. In such a case as this the possibility of drawing a juror, connected with an insurance company, interested in the defense is so remote that counsel should have shown their good faith before being permitted to poison the minds of the jurors by asking a question of this character. The question at issue was whether the defendant's son negligently injured the plaintiff, not whether defendant carried liability insurance. The fact that the defendant did or did not carry such insurance would not aid the jury in arriving at a true and impartial verdict. It has been well said that seas have been made red and continents drenched with blood, and to what purpose? That the humblest citizen may have a fair trial before an impartial jury. Trials should be conducted so as to exclude all improper influences, so that verdicts will reflect the intelligent judgment of the jury solely upon the merits; otherwise our courts will justly forfeit the...