Weatherbee v. Hutcheson
| Decision Date | 18 November 1966 |
| Docket Number | No. 42344,No. 3,42344,3 |
| Citation | 152 S.E.2d 715,114 Ga.App. 761 |
| Parties | Alfred M. WEATHERBEE v. Hubert H. HUTCHESON |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In a negligence action it is proper to qualify the jury as to possible interests any member may have in, or in relationship to, all insurance companies having a potential financial interest in the outcome of the case.
(a) If the company is a mutual company, in the assets of which the policyholders have an interest, the policyholders are disqualified; aliter if the company is a stock compamy.
(b) The court may, and should inquire as to the existence of insurance and the name of the company, or complaines, so that the information will be available for qualifying the jury; but it should be obtained in a pre-trial hearing, or in chambers, or in some manner outside the presence and hearing of the jury. When requested by the court, counsel should make full and fair disclosure of the information but will not be required to do so in the presence and hearing of the jury.
2. An attorney is neither competent nor compellable as a witness to testify concerning matters of information which he may have received as attorney from his client.
3. When a motion to strike evidence delivered in the jury's presence and which is of a kind that may influence the verdict is sustained, the jury should be informed of it by the court and instructed to disregard the stricken testimony. This is particularly true when the evidence is with regard to an attempted compromise of the case.
4. One qualification of the jury concerning their possible relationships with an insurance carrier should suffice.
5. General grounds of the motion for new trial are not passed upon.
Herbert H. Hutcheson brought suit in Long Superior Court against Alfred M. Weatherbee to recover damages alleged to have been sustained when Weatherbee's automobile collided with that of the plaintiff on a public highway in Long County.
After defensive pleadings were filed the case came on regularly to be tried; and after the opening of court, the calling of the veniremen and sounding of the case, with announcements of ready from each side, counsel for the plaintiff requested the court to qualify the jury as to the defendant's insurance carrier. These had been no pre-trial of the case, and plaintiff had neither served notice to produce the policy, filed requests for admission, nor pursued any discovery proceedings to ascertain whether there was insurance and, if so, the name of the company.
The court asked counsel to approach the bench and asked defendant's attorney whether insurance was involved and, if so, the name of defendant's insurer. The attorney declined to disclose that information, whereupon the court directed him to hold up his hand and be sworn. The attorney objected upon the ground that he was neither competent nor compellable as a witness to matters or information which he may have obtained as an attorney from his client. The objection was overruled, and he was sworn. The court, in the presence and hearing of the veniremen, asked whether the defendant carried liability insurance; when the attorney answered that he did, the court asked for the name of the company and, again over objection, it was given, to wit, Travelers Insurance Company.
At that stage plaintiff's attorney asked the court to swear him as a witness and, after being sworn, proceeded to state in the presence and hearing of the jury, and over objections of counsel for defendant, that he knew the defendant had liability insurance and that the carrier was Travelers Insurance Company bacause an adjuster from that company had approached him in an effort to negotiate a settlement of the case. Defendant's objection to this testimony was as to the attorney's testifying concerning offers or negotiations for settlement. The objection was overruled.
Defendant moved to strike all of the testimony of plaintiff's counsel concerning offers by or negotiations with an adjuster of Travelers Insurance Company, and the court replied, 'I will do that,' but did not, at any time, making his ruling known to the jury or instruct them that the evidence had been stricken and that it should be disregarded.
The court then proceeded to qualify the veniremen, asking them whether they were officers, agents, employees, stockholders or policyholders of Travelers Insurance Company. A panel of 24 jurors was called and placed in the boxes, and the court again proceeded to qualify these 24 in the same manner over objection of defendant's counsel that the matter of insurance was being unduly brought to the attention of the jurors to the prejudice of the defendant.
A verdict was returned for the plaintiff for the full amount sought in the petition, judgment was entered on the verdict, and an amended motion for new trial was overruled. This appeal followed. Error is enumerated upon the swearing of defendant's attorney as a witness and eliciting from him, over proper objection, information which he had secured as an attorney from his client; upon the permitting of plaintiff's counsel to testify in the presence and hearing of the jury concerning negotiations for settlement by an adjuster of defendant's insurance carrier and the failure of the court to inform the jury that the testimony had been stricken and should not be considered; upon a qualifying of the jury twice concerning possible relationships with the defendant's insurance carrier, thereby overstressing the matter of insurance to the defendant's prejudice; and upon the overruling of the motion for new trial.
Bouhan, Lawrence, Williams & Levy, Frank W. Seiler, Walter C. Hartridge, II, Savannah, for appellant.
Dawson & Phillips, Richard D. Phillips, Ludowici, for appellee.
1. (a) It is proper to qualify the jury relative to the possible interest which the members may have in an insurance carrier having a financial interest in the outcome of the suit. This will often apply to carriers of both the plaintiff and the defendant. For example, if both have liability insurance and a cross action is brought, both companies are potentially interested in the outcome. If damages are sought for injury to plaintiff's personal property, particularly the automobile, it is not unlikely that it may be covered by collision insurance making the collision carrier, by virtue of its right of subrogation or of repayment if it has paid the loss, or of the prospect of avoiding payment if it has not, financially interested in the outcome. The same is true as to collision...
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