involving negligenceSummary of this case from Krupp v. Poor
Decided March 20, 1929.
Jury — Voir dire examination — Purpose and scope of inquiry — Connection with or interest in casualty insurance company.
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.
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.
3. It is not error to permit the examination of a prospective juror on his voir dire as to his connection with, interest in or relationship to a casualty insurance company, where such a company is directly or indirectly interested in the result of the trial.
ERROR to the Court of Appeals of Cuyahoga county.
The facts are stated in the opinion.
Messrs. Day Day, and Messrs. Knepper Wilcox, for plaintiff in error. Mr. A.J. Dickson and Messrs. Howell, Roberts Duncan, for defendant in error.
The plaintiff in error here, Joseph Pavilonis, was defendant below. The action was for personal injury received in an automobile accident. The defendant in error, Joseph Valentine, recovered a judgment in the trial court, which was affirmed by the Court of Appeals.
In impaneling the jury, counsel for defendant in error, upon the voir dire examination of the prospective jurors, asked the questions: "Are any of you members on the jury employed by any casualty insurance company that writes automobile liability insurance? Are any of you owners of stock in any liability insurance company? * * * Are any of your relatives or close personal friends connected with as an employee or in any employment with any insurance company that writes automobile liability insurance?"
As vacancies in the panel were filled by new jurors, the same or similar questions were repeated. The plaintiff in error objected at the time to each of the questions propounded, took exceptions to the ruling of the court, and properly saved his question throughout the trial.
The sole question here is whether the propounding of such questions and the overruling of the objections thereto constituted prejudicial error and require a reversal of the judgments below.
It is argued by the plaintiff in error that the effect, if not the purpose, of such inquiry, was to lead the jury to believe that a casualty insurance company was interested in the result of the trial, and that any judgment rendered against the plaintiff in error would be paid in part or in whole by such casualty insurance company, and that, because of such belief, the jury finally selected probably did, in disregard of the law and the evidence, return a verdict for the plaintiff below, defendant in error here.
It is argued by the defendant in error here that, since a casualty insurance company was actually conducting the defense of the plaintiff in error, with its counsel and investigators present at the trial table, and was active in endeavoring to prevent a verdict against the plaintiff in error, and was, in fact, directly interested in the verdict, he had the same right to inquire of the jurors as to their interest in, connection with, or relation to, such casualty insurance company as he had to inquire of their interest in, connection with, or relation to, the plaintiff in error; that, since the jurors were unknown to him, it was the only way in which he could be assured of a fair and impartial jury; and that, unless he was diligent in such inquiry, he would have been deemed in law to have waived any objection he might have had to any juror interested, directly or otherwise, in such casualty insurance company.
The purpose of the voir dire examination of a prospective juror is to determine whether he has the statutory qualification of a juror, and, having the statutory qualification, whether there exists any reason why, although qualified generally, he may be disqualified to sit in the particular case on trial.
With reference to the statutory qualifications, they are the same in every case, and the questions that may and should be propounded to the prospective juror in reference thereto have become standard, and but little, if any, discretion is lodged in the trial court as to the character and scope of such questions. With reference to the qualification or disqualification of a prospective juror to serve in the trial of a given case, the questions that may be propounded necessarily vary with the varying issues, circumstances, and parties, as such issues, circumstances, and parties may operate to influence or bias particular jurors, as distinguished from jurors generally. Because of the great variety of such influences, the character and scope of the questions that may be propounded necessarily cannot become standard, but must be controlled by the court in the exercise of a sound discretion, the court having for its purpose the securing to every litigant an unbiased jury. In the exercise of such discretion it is the duty of the court to prevent an abuse of the privilege, but a court may not so exercise its discretion as to deny to litigants the right to ascertain from the juror on his voir dire examination whether he is interested, directly or indirectly, in the result of the litigation, or whether for any reason he is prejudiced or biased in favor of or against either litigant.
In practice, parties at the trial are confronted with jurors whom they have never seen, of whom they have never heard, and of whom they must learn upon the voir dire examination such pertinent facts and history as will enable them to form a conclusion whether they can or cannot expect from the so-examined juror a fair and impartial trial.
By statute each party is afforded the right to challenge for cause, and to challenge peremptorily, by the exercise of which right he can prevent an objectionable juror from sitting in the trial. Of course, before a challenge for cause can be sustained, the existence of the cause must be developed from the prospective juror himself upon his voir dire examination. No amount of secret service investigation of the juror prior to his being called to the panel would be effective to support a challenge for cause if the right to develop the facts and history from the juror himself upon his voir dire examination were denied.
With reference to the peremptory challenge, it may be exercised for no reason at all; but it will not be presumed that the Legislature, when it afforded the right to a litigant to peremptorily challenge a juror, contemplated that that was the only way he would be expected to exercise such challenge, but rather that he would be expected to exercise such challenge intelligently. To permit him to exercise such challenge intelligently requires that he be permitted to extend his inquiry beyond the subjects which constitute ground for challenge for cause, and, since the history of the juror might affect his relationship to one case and not to another, the character of such inquiry will be governed by the peculiar facts of each case, and the extent of the inquiry must necessarily be within the sound discretion of the court.
The inquiries in the instant case related to a subject pertinent to the issue involved in every voir dire examination of a juror, the issue of interest or bias. Some of the inquiries if answered in the affirmative would have supported a challenge for cause, and any of the inquiries if answered in the affirmative would have aided the litigants in determining whether they ought to exercise a peremptory challenge.
However it is urged that by reason of such inquiries the accepted jurors inferred that a casualty insurance company was interested in the result of the trial, and that, therefore, by reason of such inference, the accepted jurors were biased against the casualty insurance company and the insured, and an unfair and partial trial resulted.
The statement of the proposition at once condemns both the jurors and the jury system. The assumption that but for the voir dire examination the jurors would not have suspicioned that a casualty insurance company was interested in the case reflects upon the intelligence of the jurors. It is a matter of common knowledge that automobile owners rather generally carry casualty insurance, and that jurors rather generally own automobiles, and that counsel and representatives of the casualty insurance companies do not generally appear at the trial and conduct the defense of suits in which they are not interested.
We know of no character of case where it would be claimed that it would be improper to inquire of a juror whether he is interested directly in the company that will be called upon to respond to a judgment if one be secured, whether such company be a party to the trial or not; and if a juror may be interrogated as to such interest, what principle denies the same inquiry as to his indirect interest?
What is there about the respectable, substantial, and all-pervading business of insurance that would require a different rule to be adopted with reference to it than is adopted with reference to every other business that may from time to time be directly or indirectly interested in the result of a lawsuit, although not a party to it? We have not such a base estimate of the integrity of jurors generally, nor such a contempt for the jury system, as to lead us to believe that jurors, in violation of their oaths, render verdicts pro and con according to their suspicions that by their verdict a cause of action may or may not arise against an insurance company; nor are we willing to pronounce a judgment which would condemn a system that is ingrafted upon the government by its fundamental law and has been employed by civilized nations since a period of which history has no record, a system which the Supreme Court of the United States has twice eulogized as "twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from * * * facts thus occurring than can a single judge." Sioux City P. Rd. Co. v. Stout, 84 U.S. (17 Wall), 657, 664 ( 21 L.Ed., 745); Davidson Steamship Co. v. United States, 205 U.S. 187, 191, 27 S.Ct., 480, 51 L.Ed., 764.
Indeed in this very case we learn, off the record, but from argument of counsel, that upon its first trial, where the same character and scope of examination of the jurors was indulged in, a verdict for the plaintiff in error was returned and judgment entered upon such verdict; that that verdict was reversed in the Court of Appeals ( 27 Ohio App. 26, 160 N.E. 737) for error in the charge of the court. This case, therefore, furnishes its own refutation of the argument of plaintiff in error.
The many authorities upon this subject are collated in 56 A.L.R., at page 1454, and succeeding pages; 35 Corpus Juris, at page 394; 16 Ruling Case Law, at page 276, and, because of their number and near unanimity, it would be profitless to cite them separately here. The overwhelming weight of authority supports the view here reached. The few courts that have reached a contrary conclusion recognize the fact that a juror who is interested directly or indirectly in a casualty insurance company is not qualified to sit as a juror in a case where the casualty insurance company will ultimately be required to reimburse the assured litigant, in whole or in part, if a judgment is obtained against him, and such courts suggest that the presence or absence of such interest may be elicited from the juror upon his voir dire examination by the circuitous route of asking him generally as to his occupations, employments, investments, and relationships, and by broadening the scope of the inquiry so as to require the juror to disclose all his occupations, employments, investments, and relationships. Such an examination would necessarily involve the consumption of much time, to the annoyance and expense of the court, the juror, and the parties, would be an unnecessary and unwarranted imposition upon the juror, and would furnish a potent reason for all persons to avoid jury service.
We are unable to frame a practical rule that will protect the litigants against any inadvertent acceptance of an interested or biased juror and at the same time prevent the inquiry of a juror on his voir dire examination as to the existence or nonexistence of such interest or bias. Nor do we regard a business that is generally recognized as legitimate and honorable, and the patronage of which has been promoted and encouraged by compulsory legislation, as requiring the drafting of a special rule exempting those who are connected with it, directly or indirectly, from disclosing such connection when called as jurors to sit in a cause which may result in a verdict and judgment which such business may ultimately be required to pay.
MATTHIAS, DAY and ALLEN, JJ., concur.
MARSHALL, C.J., KINKADE and JONES, JJ., dissent.
While I do not concur in the conclusions reached by the majority, or in the reasons set forth in the majority opinion, I would not permit myself to write a dissenting opinion except for the fact that it is stated in the majority opinion that the position of the plaintiff in error "condemns both the jurors and the jury system" and again that it is "a base estimate of the integrity of jurors generally," and "a contempt for the jury system." I am not willing that my silence as one of the minority shall be construed as an admission that I personally entertain those views. No fault can be found with the first and second paragraphs of the syllabus. The third is likewise above criticism, if the Casualty Insurance Company is actively or ostensibly engaged in making the defense.
In the majority opinion it is suggested that a casualty insurance company was actually conducting the defense with its counsel and investigators present at the trial table. If it is meant by this that it was patent to the jurors that an insurance company was an indemnitor, and directly interested in the event of the suit, then no prejudice has resulted, and the opinion is wasted effort. The case has been argued in this court on the theory that there was nothing to indicate that the defendant was insured, and that the voir dire examination was a deliberate effort to apprise the jurors of that fact and thereby to create in their minds whatever bias might naturally follow that disclosure. It is always proper, where an insurance company is a party to the suit, or where it is clearly apparent that an insurance company is making the defense, to inquire what insurance company it is and whether any of the jurors have an interest in the company, or whether there is any relationship of principal and agent, master and servant, or employer and employee, between such company and the prospective jurors; but to go beyond this seems to me to invade the realm of improper influence.
The issue to be determined by the jury is whether the actual defendant to the suit has been guilty of negligence, and, if so, whether that negligence is a proximate cause of the injury, and, if those matters are determined in plaintiff's favor, what damage has been suffered. No one would contend that a different rule of negligence or a different measure of damage would apply because the defendant may have taken the precaution to purchase indemnity insurance. The question of propriety of the voir dire examination is only presented where an insurance company is indemnitor but is not actively participating in the defense. And whatever may be said pro and con on this subject, it must be clearly apparent to every one that the reason for pursuing the examination, where the insurance company is not ostensibly interested, is not for the purpose of eliminating interested jurors, but to arouse the feelings of those who are accepted as jurors. Such questions are asked for the purpose of insinuating, or, as it sometimes happens, plainly indicating the background presence of an insurance company. The fact that such methods are resorted to by counsel for the plaintiff, and that they are so stoutly resisted by counsel for the defendant, is proof sufficient that the experiences of the past have shown that verdicts are facilitated and the amount of recovery augmented by such means.
The fact is that stockholders and employees of insurance companies are not so numerous in any community, neither do they constitute such a large proportion of the entire number of persons available for jury service, that there is any likelihood or probability that there would be more than one or two of them in any panel of twelve; neither is it probable that they would corruptly try to defeat a recovery on that account. There are so many indemnity companies that the juror interested in a single company could not know whether his own, or some other company, if any, is interested. In 1912 our Constitution was amended to meet just such a situation as this by permitting nine jurors to render a verdict. Surely it is better that one or two of the three inconsequential jurors should remain on the panel, though remotely interested, than that the entire panel should be subjected to the possible taint of prejudice.
It was suggested in argument that courts have a very large measure of discretion in setting aside verdicts and granting new trials and that such means are available to correct any injustice appearing in the verdict; but it may be answered that an ounce of prevention is better than a pound of cure and that the jury should not be permitted to range over large areas of possible error and prejudice with the expectation of requiring one new trial after another to eventually correct the same. The real fact is that under our present system in Ohio there are many varieties of circumstances and conditions where judges are powerless to prevent unjust verdicts, and where the remedies of setting them aside and granting new trial have become rather strict.
It may further be answered that a new trial, with all its attendant expense, delay, and possibilities of similar errors in a second, third, or fourth trial, does not afford a complete solution to the problem. If a building contract would forbid the owner to make any protest concerning violation of the contract during the course of construction, and provide that he might only have the recourse of having the building torn down and rebuilt two or three or four times, until finally constructed according to the plans and specifications, the sanity of the party to such a contract would be seriously questioned. The word "prejudice" seems a harsh term to apply to the state of mind of a juror who is called upon to decide between a physically injured person, on the one hand, and an insurance company, on the other, which for a premium has agreed to indemnify the defendant. It is, however, a condition and not a theory that jurors and judges as well are frequently influenced by the poverty or wealth, the social status, of the parties, and a score of other matters which should not enter into their deliberations. Perhaps, after all, the word "prejudice" is not an accurate term to express the situation. It is more accurate to speak of it as one of the weaknesses of human nature, which are possessed by men generally, and therefore becomes a part of the average opinions and judgment of the jurors. It is more correct to say that jurors, and judges, as well, sometimes reach a wrong conclusion because of an erroneous trend of thought. By whatever expression it may be described, we should not deceive ourselves into thinking that the conclusions of jurors are always accurate, or that their reasoning is always sound, or that justice is always the product of their deliberations.
The jury system has become so hedged about by unnecessary difficulties, and subjected to so many handicaps, that a group of geniuses could not make it function perfectly. Its primary as well as its ultimate purpose is solely to determine issues of fact. In practice, however, it does not always accomplish its purpose. A general verdict makes no findings of fact, and while a general verdict is generally consistent with the weight of the evidence, and the result a logical solution of the problem submitted, it is not always so, and that it is sometimes so is a great tribute to the intelligence of the jury and a defense of the jury system so cogent and powerful that any defense of mere eulogy is weak and futile by comparison. That the verdict is not always a logical deduction from the evidence does not materially reflect upon the intelligence or integrity of the jury itself. It may be charged in large part to the system by which the jury is made to function. Instead of permitting the jury to confine its deliberations to matters of fact, and limit its verdict to specific findings of fact, which it is well qualified to do, the judge who presides over the trial delivers a lengthy dissertation upon the law which should govern the controversy, which dissertation is sometimes of doubtful accuracy, involved in verbosity, prolixity, and ambiguity, and always couched in technical terminology. The jury is then instructed that it must consider all the evidence and all the law and render a general verdict which makes no reference to either fact or law, but which is expected to reflect an accurate application of sound law to the true facts of the controversy. An unjust verdict is the inevitable result of involving good men and a good system in so many difficulties and complexities that highly trained experts would be unequal to the task.
While no institution for fact finding comparable to the jury system has ever been found, and while I know of no permanent system which will work better, I am not deaf to the criticism which is being heaped upon it; neither am I blind to those patent defects and the abuses which have crept into it during the last two or three decades. The judicial branch of our government is on trial before the bar of public opinion. However unjustly, it is undeniable that the courts also have been placed on the defensive. Judges and lawyers must answer for the things for which they are really responsible, but juries must bear the blame which is justly due to them. I agree heartily with the quotations found in the majority opinion from Sioux City P. Rd. Co. v. Stout, 84 U.S. (17 Wall.), 664, 21 L.Ed., 745, and Davidson Steamship Co. v. United States, 205 U.S. 191, 27 S.Ct., 480, 51 L.Ed., 764, but I deny that in all instances the jury embodies the average intelligence, judgment, and enlightenment of citizens generally.
The theory of the jury system is not that it secures the average judgment of citizens generally, but rather the average judgment of the better element of citizens chosen by approved processes of selection. The quality of a jury will be better than the quality of citizens generally only if the processes of selection are sound and courageously executed. If large classes of the better element of citizens are excused from jury service altogether, and if liberal challenges for those are freely exercised, and if a generous number of peremptory challenges are likewise permitted and exercised, and if a judge has a habit of excusing those whose business cares would be inconvenienced by jury service, and if, as happens in certain communities, the jury wheel has been filled with the names of those who clamor for selection as a reward of service rendered to the dominant political party, then the quality of the jury becomes far below the quality of citizens generally. That some of these things occur in every community and all of them occur in some communities is a fact which no fair-minded person will deny.
In the English practice little time is devoted to impaneling a jury. No barrister would be permitted to make an extended and detailed examination of individual jurors. In many counties of this state the trial judge takes the initiative in the voir dire, and counsel may make such further inquiry as seems proper, but may not again cover the ground already covered by the judge. Who shall say that the fact finding of the jury in such counties, or in the English courts, is inferior in quality to that in those counties where the jury is subjected to a searching inquisition, and where days and even weeks are sometimes consumed in the unworthy efforts of a skillful advocate to secure a jury of specially selected men whom he thinks can be molded to his will and become advocates of his cause in the jury room? A jury thus selected does not typify the boasted "twelve men of the average of the community." The federal Supreme Court decision quoted in the majority opinion states: "It is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions," etc. This is absolutely sound, but the manipulations of a voir dire examination of the character indorsed by the majority opinion result in securing twelve men of a single way of thinking, and with preconceived conclusions, which require a large amount of evidence to overcome. Under the guise and the pretended purpose of eliminating a single juror having a possible interest and disqualification, the real purpose is to secure a panel of twelve with inflamed sympathies and prejudices which can be capitalized to one party's profit. If it is proper to inquire into the interest of jurors in indemnity insurance cases, it is equally pertinent to inquire into their personal histories, their political inclinations, their religious affiliations, their economic trend of thought, their moral character, their social habits, their hereditary traits, and a score of other matters equally irrelevant to the controversy. The majority opinion and decision open the door to a thousand angles and sidelights in trials, which can only tend to confusion and injustice. The fundamental theory of the jury system is that it calls for the average judgment and reflects the average knowledge and experience of men in human affairs, not the warped and specialized viewpoint of men who have been selected by the skillful manipulations of shrewd counsel through the processes of elimination and challenge.
Jury service must be made compulsory on the part of all classes of citizens without exception and without release therefrom for trivial excuses. A guidebook of general instruction and training should be placed in the hands of every juror at the time of his summons and a few lectures delivered by the judge to the array before their term of service begins. Their verdict should be confined strictly to findings of fact, leaving the conclusions of law to be deduced by the court in rendering judgment. The judge who presides over the trial must be given a larger share in advising them upon the interpretation of evidence. The voir dire examination should be largely, almost exclusively, conducted by the court. The ban upon the disclosure of corrupt practices in the jury room must be removed. Judges should be given a larger authority and discretion over verdicts. Until such time as these things, or many of them, shall be brought to pass, the well-phrased eulogy of the United States Supreme Court upon the jury system will not have full application.
The majority opinion states: "We are unable to frame a practical rule that will protect the litigants against any inadvertent acceptance of an interested or biased juror and at the same time prevent the inquiry of a juror on his voir dire examination as to the existence or nonexistence of such interest or bias." We are prepared to suggest two methods, either of which will bring about the desired result without prejudice to the defendant, whether insured or not: First, let the judge conduct the examination on this point after first stating that he has no knowledge whether or not the defendant is insured, and that they must assume that he is not insured; second, let a questionnaire be submitted to each juror when the summons is served on him, making minute inquiry as to his connection with or relation to automobile liability insurance, the answers to be placed on file in the clerk's office and to be available at all times to counsel. If they show cause for challenge under the statute, the matter can be privately argued to the court. If no statutory cause is shown, the peremptory challenge is available. The majority opinion inquires what there is "about the respectable, substantial and all-pervading business of insurance that would require a different rule to be adopted with reference to it than is adopted with reference to every other business?" etc. The answer is that the rule is not different, but that a different method of approach becomes necessary because automobile negligence cases constitute a very large proportion of the whole number of litigated cases, and because experience has shown that parties insured for $5,000 frequently are subjected to verdicts for $10,000, $15,000, or more.
The majority opinion further states that: "It is matter of common knowledge that automobile owners rather generally carry casualty insurance." This is an assumption of fact which is contrary to well-authenticated statistics on that subject. In 1925, when there were 1,400,000 automobiles in this state, statistics show that only 14 per cent. of them were covered by indemnity insurance, while 86 per cent. were uninsured. Today there are more than 1,700,000 automobiles in Ohio and there is no reason to believe that a larger proportion of them are insured. After this decision is published the owner of an automobile will be between the upper and nether millstone. If he omits to carry insurance, he will carry a very great risk. If he carries a $5,000 policy, which is the amount usually carried, he runs a greater risk of an adverse verdict, and that verdict may be enormously larger than the amount of the policy.
It was assumed, only, that there might be a casualty company interested in the trial. Eighteen jurors were called before the jury panel was filled. On their voir dire examination counsel for the plaintiff propounded to each juror a series of questions, containing suggestions that a liability company was interested in the result of the suit. These questions were asked in the following form: (a) "Are any of you owners of stock in any liability insurance company?" (b) "Are any of you members on the jury employed by any casualty insurance company that writes automobile liability insurance?" (c) "Are any of your relatives or close personal friends connected with as an employee or in any employment with any insurance company that writes automobile liability insurance?"
Counsel for the defendant not only repeatedly objected and excepted to the court's ruling permitting the questions to be asked, but also asked for the withdrawal of a juror and a mistrial of the cause.
It does not appear that plaintiff's counsel had any cause to believe that any of the panel had any interest whatever in any liability or casualty insurance. The questions are evidently a compilation culled from various court decisions, but, even so, they embrace a much wider scope than is usually allowed by the courts. Each juror was queried as to his connection, as a stockholder or employee, with any casualty insurance company, and whether he had a relative or close personal friend in the employment of "any" insurance company writing automobile insurance. It is submitted that such questions take too wide a scope, and, by their extension to "any" insurance company, go too far afield, since "any insurance company" may include some company doing business in Ohio or Birmingham. We cannot conceive how the employment of a remote relative, much less a "close personal friend," in any insurance company would be so prejudicial as to be a cause for challenge. And this would be especially true unless the juror was advised that his relative or "close personal friend" was employed in a company actually indemnifying the party to the cause. This record discloses without doubt, that, had no questions been propounded suggesting that Pavilonis might be insured, every member of this jury would have been absolutely innocent of knowledge that any casualty company was involved, and would have been free to exercise his judgment impartially between the actual parties to the suit. Pavilonis had the right, not only to an impartial court, but to an impartial jury, and had the right to a trial upon the issues of negligence, unhampered by the voluntary suggestion, frequently repeated, that Pavilonis might be insured, and, in case of an unfavorable verdict, would be able later to recoup, either partially or wholly, from a casualty company not a party to the suit.
We recognize the fact that the courts of this country, including the lower courts of our own state, are not in accord upon this subject, but substantially every court acknowledges and appreciates the prejudicial character of questions suggesting the liability of an insurance company, where such company is not a party. Were we to balance the just and reasonable rights between the parties for the purpose of securing an impartial trial upon the real issues, we are convinced that questions of this character, propounded to jurors on their voir dire, are extremely damaging and prejudicial, and that plaintiff's counsel could safeguard his justifiable right of challenge by methods which do not suggest that an indemnifying company will pay, either partially or in whole, the amount of the verdict assessed against the defendant. It is very easy to ascertain what a juror's employment is without asking whether he is employed by a casualty company. If counsel desires that information, all that would be necessary to acquire it would be to ask each individual juror what his occupation is. This could be accomplished without asking the juror whether he was connected with or employed by a casualty company. As a matter of fact, in this case each of the eighteen individual jurors was interrogated by plaintiff's counsel as to his specific employment, and each gave an answer disclosing that his employment had no connection whatever with any casualty company; so that in two of the questions propounded the information which counsel for plaintiff sought had been actually and satisfactorily obtained by asking each juror what his occupation was, and not only did counsel ascertain the occupations of the men on the panel, but the occupation of both wife and husband, if the juror was married. He could likewise have ascertained the occupation of any immediate member of the family. And if counsel for plaintiff desired in good faith to ascertain whether a juror was a stockholder in a casualty company, he could readily have acquired this information by asking the juror if he had any interest, directly or indirectly, in the result of the case on trial, or by asking him if he was a stockholder in any corporation, and, if so, what corporation. Hoyt v. J. E. Davis Mfg. Co., 112 App. Div. 755, 758, 98 N. Y. S., 1031; Putnam, Admx., v. Pacific Monthly Co., 68 Or. 36, 130 P. 986, 136 P. 835, 45 L.R.A. (N.S.), 338, 344, L.R.A., 1915F, 782, Ann. Cas., 1915C, 256; Mithen v. Jeffery, 259 Ill. 372, 376, 102 N.E. 778. These cases are cited for the purpose of showing that, if counsel had desired in good faith, for the purpose of challenge, to inquire as to the interest of a juror in the cause on trial, he could have obtained this information by disclosure of such interest or occupation without suggesting that a casualty company may be involved. In the instant case, counsel did obtain information as to each juror's individual employment, and there was no need of suggesting the connection of an insurance company, and he could have ascertained his interest as a stockholder, if there were any such, by asking the juror whether he had any financial interest, direct or indirect, in the cause on trial. As it turned out, while each one of the eighteen jurors called disclaimed any connection with a casualty company, each of them was inoculated with the very prejudicial suggestion that an insurance company was actually involved, and that a verdict against the defendant would be mitigated by recoupment from his insurer. This and this only was accomplished by the voir dire examination; here is a concrete case showing the unwisdom of such examination, which, while resulting in no cause for challenge to the plaintiff, was extremely damaging to the defendant.
By affirmance of this method of procedure this court places its stamp of approval upon suggestions that a defendant may be indemnified against damages which the jury may assess against him. Not only that, but it approves voir dire interrogatories seeking information whether a juror has a "relative" (however remote) or "a close personal friend" employed somewhere in some company which writes automobile insurance. Three members of this court are of opinion that the stamp of disapproval should be placed upon such procedure, that the method of examination was extremely prejudicial, and that the cause should be reversed for that reason.
KINKADE, J., concurs in this dissenting opinion.