In Weatherbee v. Hutcheson, 114 Ga. App. 761 (1) (a) (152 S.E.2d 715) (1966), this court found that in the case of mutual insurance companies, the policyholder had a direct pecuniary interest in the outcome of litigation involving one of its policies.Summary of this case from Smith v. Crump
ARGUED OCTOBER 5, 1966.
DECIDED NOVEMBER 18, 1966. REHEARING DENIED DECEMBER 7, 1966.
Action for damages. Long Superior Court. Before Judge Durrence.
Bouhan, Lawrence, Williams Levy, Frank W. Seiler, Walter C. Hartridge, II, for appellant.
Dawson Phillips, Richard D. Phillips, for appellee.
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, they are disqualified; aliter if the company is a stock company.
(b) The court may, and should inquire as to the existence of insurance and the name of the company, or companies, 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 the court sustains a motion to strike evidence delivered in the jury's presence which is of a kind that may influence the verdict, 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 by the court concerning their possible relationships with an insurance carrier should suffice.
5. General grounds of the motion for new trial are not passed upon.
ARGUED OCTOBER 5, 1966 — DECIDED NOVEMBER 18, 1966 — REHEARING DENIED DECEMBER 7, 1966.
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. There 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 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 because 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, make 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.
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 coverage on the defendant's vehicle if, in a cross action, he seeks damages for injury to it. The collision coverage may be with the same company affording liability coverage, or it may be with a separate company. And there are instances when two or more companies may have an interest as carriers of liability insurance covering the same vehicle. The qualification should be specifically as to all companies having an interest in the outcome. Reynolds v. Satterfield, 86 Ga. App. 816 ( 72 S.E.2d 811); Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285 ( 76 S.E.2d 647); Shipman v. Johnson, 89 Ga. App. 620 (1) ( 80 S.E.2d 717).
If the company is a mutual one in which the policyholder has an interest in the assets of the company, usually realized by way of dividends reducing the policy premium, it is proper to qualify the jurors as to whether any of them are policyholders or related within the prohibited degree to policyholders. It has been held not error to make the inquiry as to policyholders of any company when it does not appear whether or not it is a mutual. Parker v. Bryan, 96 Ga. App. 283 ( 99 S.E.2d 810); Williams v. Lane, 103 Ga. App. 150 ( 118 S.E.2d 730). But if it should appear that the company is a stock company the inquiry would be irrelevant, for in that event the policyholder has nothing more than a contract with the company, giving him no interest in its assets, and he is no more disqualified than would be a depositor in a bank that is a party to litigation.
(b) Now that we have pre-trial procedures, requests for admissions, discovery, and notice to produce, there should be no difficulty in obtaining the name of any interested company for use by the court in qualifying the jury. Cf. Y.M.C.A. v. Bailey, 112 Ga. App. 684, 688 ( 146 S.E.2d 324).
Generally, the information is readily obtainable if the court will simply make inquiry of the defendant's attorney prior to trial. But it should be done out of the presence and hearing of the jury. Farrar v. Farrar, 41 Ga. App. 120 ( 152 S.E. 278). The judge may pre-try the case, and get the information at the pre-trial hearing. He may simply call counsel into his chambers before starting the trial and obtain the information. If it were done in either manner we should think it the duty of counsel to reveal to the court the information.
But the court should not call upon counsel for the information in the presence and hearing of the jury. If that is done it is inevitable that members of the jury will observe and hear the answers made and, if there is insurance, will know whether it is carried by the plaintiff or defendant. That knowledge on the part of the jury can be, and often is, prejudicial and harmful. It should be avoided for the same reason that testimony by witnesses concerning the existence of insurance, or of an attempt to settle the claim is avoided.
If there has been no pre-trial of the case and the court has not sought, in chambers, to get the information from counsel, but plaintiff's attorney has served a notice to produce the policy, or has sought and obtained information as to the name of the company by way of interrogatories, requests for admissions, or otherwise, the attorney can and should disclose the information to the court — but not in such a manner as to be observable or heard by the jury. Nor should the policy or the admission in response to the request, or the answer to an interrogation concerning the matter be disclosed to the jury.
2. An attorney is neither competent nor compellable to testify as a witness to any matter or thing, knowledge of which he may have acquired from his client, by virtue of his relations as attorney, or by reason of his anticipated employment. Code § 38-1605. This rule applies with reference to the attorney's knowledge concerning insurance which his client may have carried. Freeman v. Brewster, 93 Ga. 648 (5) ( 21 S.E. 165). Accord: Atlanta Coca-Cola Bottl. Co. v. Goss, 50 Ga. App. 637 ( 179 S.E. 420). Consequently, when the court requires defendant's counsel to be sworn as a witness, over proper objection, and to testify concerning matters knowledge of which he obtained from his client, it is reversible error.
3. While the court sustained defendant's motion to strike the testimony of plaintiff's counsel concerning negotiations for settlement which were conducted with an adjuster from defendant's insurance carrier, the striking was ineffectual because it was not made known to the jury who had heard the testimony.
This particularly applies to evidence concerning an offer of compromise or an attempted compromise of the case. It is inherently harmful evidence. Georgia R. c. Co. v. Wallace Co., 122 Ga. 547 ( 50 S.E. 478); Seal v. Aldredge, 100 Ga. App. 458 ( 111 S.E.2d 769).
4. While it is the duty of the court to qualify the jury as to possible relationships to the insurance carrier or carriers involved, there would seem to be no reason for doing it more than once. When the question was first directed to the jury none disqualified. There was no reason to conclude that any juror had deceived the court by failing to disclose his relationship, if any existed. One qualifying of the venire, or of the panel of 24, was proper. But once should have been enough. There was no reason for repeating, thus emphasizing the subject. Since the case is being reversed for other reasons, it is unnecessary to decide whether this, standing alone, would require a reversal. We simply suggest the fair and proper procedure, which we are confident will be observed on another trial.
5. Appellant strongly urges a reversal on the general grounds of the motion for new trial. While the evidence reveals that plaintiff's injuries were of a relatively minor nature, for which the jury returned a large verdict (the full amount sued for), we find it unnecessary to consider whether the general grounds have merit since there is to be a new trial, where the results may be different.
Judgment reversed. Bell, P. J., and Jordan, J., concur.