Vega v. Evans

• Decision Date: 20 June 1934
• Docket Number: No. 24658.,24658.
• Parties: VEGA v. EVANS.
• Court: Ohio Supreme Court

128 Ohio St. 535
191 N.E. 757

VEGA
v.
EVANS.

No. 24658.

Supreme Court of Ohio.

June 20, 1934.

Error to Court of Appeals, Stark County.

Action by Rufino Vega, administrator of the estate of Silverio Vega, deceased, against W. M. Evans. Judgment for plaintiff was reversed by the Court of Appeals, and plaintiff brings error.-[Editorial Statement.]

Judgment of Court of Appeals affirmed.

This was an action for damages commenced by Rufino Vega, administrator, in the common pleas court of Stark county. The petition alleges that the administrator's decedent, Silverio Vega, a boy of seven years and eight months, had been killed by the negligent operation of an automobile by the defendant W. M. Evans.

The answer denied negligence on the part of the defendant and alleged that the injuries which caused the death were brought about solely and proximately by the negligence of plaintiff's decedent Silverio.

The defendant was driving south on Harrison avenue in Canton. A truck, standing between street crossings at right angles to the sidewalk on the west side of the avenue, was delivering coal to an adjoining house by means of a chute. As the defendant's automobile was passing the front end of the coal truck which extended nearly to the center line of the avenue, Silverio with some companions came out into the avenue along the south side of the truck. When he reached the front of the truck, Silverio came into violent contact with defendant's automobile and died seven or eight hours later as a result of the injuries received.

Counsel for plaintiff, on voir dire examination of prospective jurors, asked the following questions:

‘Q. Do you have any stock in any insurance company that insures owners of automobiles against liability?

‘Q. Have you been engaged in any insurance company that insures owners of automobiles against liability?

‘Q. Have any of you any relatives who are working in any such insurance company?

‘Q. Do you have any stock in any insurance company that insures owners of automobiles against liability for damages or injury or wrongful death?

‘Q. Do you yourself sell liability insurance?

‘Q. Do you have any relatives that work in an insurance office selling such liability insurance?

‘Q. Have you any relatives that have stock in such insurance company?

‘Q. Did you ever sell such insurance?

‘Q. Did any of you at any time ever sell such insurance or ever work in any such insurance company office?'

Over objections of counsel for defendant the court permitted such questions, qualified the jury, and proceeded with the trial.

Before argument and in compliance with request of counsel for plaintiff, the court gave the following charge to the jury:

‘1. * * * It is doubtful if a child of seven years of age can be guilty of negligence. However, you are the judges of that fact, but you must bear in mind that a child of that age is only expected to exercise that care, diligence and prudence which children of the same age and intelligence and of ordinary care and prudence would use and exercise under the same circumstances.'

A verdict of $3,500 was returned and judgment entered thereon.

Petition in error was filed in the Court of Appeals, and on hearing that court reversed the judgment of the court of common pleas for three reasons:

(1) Because of the character of the interrogatories addressed to the prospective jurors on their voir dire examination by counsel for plaintiff.

(2) Because of error in failing separately to state and define the issues of fact involved in the case.

(3) Because of the error in charging the jury that ‘It is doubtful if a child of seven years of age can be guilty of negligence.'

An order of this court to certify the record, made on motion of plaintiff, brought the case here.

Syllabus by the Court.

[Ohio St. 535]1. The purpose of the examination of a prospective juror upon his voir dire is to determine whether he has both the statutory qualification of a juror and is free from bias or prejudice for or against either litigant. Paragraph 1 of the syllabus of Pavilonis v. Valentine, 120 Ohio St. 154, 165 N. E. 730, followed and approved.

2. The scope of the inquiry will not be confined strictly to the subjects which constitute grounds for the sustaining of a challenge for cause; but if it extends beyond such subjects it must be conducted in good faith with the object of obtaining a fair and impartial jury and must not go so far beyond the parties and the issues directly involved that it is likely to create a bias, a prejudice, or an unfair attitude toward any litigant. Paragraph 2 of the syllabus of Pavilonis v. Valentine, supra, modified.

[Ohio St. 536]3. It is error to permit the...