Gill v. Whiteside-Hemby Drug Co. , 197 Ark. 425 ( 1938 )

We determine whether certain instructions given at appellee's request were erroneous, and whether it was prejudicial for the trial court to hold that counsel for appellant should not interrogate prospective jurors as to insurance affiliations.

Appellant, plaintiff below, was struck by a motorcycle. He was attempting to cross Victory street (in Little Rock) in front of a street car. The motorcycle was being operated by Victor Wild, who had a companion with him. Wild was making a business trip for appellee. When the accident occurred, the street car was about two-thirds through an intersection.

From satisfactory evidence the jury could have found that appellant undertook to cross in front of the street car while the car was moving; that in doing so he stepped into a position of peril; that Wild was not negligent in failing to anticipate appellant's movements, and that the collision was unavoidable.

There was a verdict for the defendant.

The first assignment of error is that the court improperly ruled that plaintiff's counsel should not interrogate members of the jury panel on the subject of possible insurance affiliations.

The question was, "Do any of you have any business connection with any insurance company writing liability insurance?"

Upon objection being made, the court retired to chambers, and in the absence of the jury the president and the secretary of appellee corporation testified that when the accident occurred there was no liability insurance, but that a policy was procured a few days later. Prior to the accident the two witnesses had discussed advisability of procuring insurance, but they had not contacted or talked with any insurance representative with respect to the subject.

Specifically, the court ruled: "Let the objection be sustained. The court holds that counsel for plaintiff would have the right to ask the jurors what business they are engaged in, without referring to any particular occupation or profession."

Ground for objection was that the plaintiff should not be denied the right to ask whether any of the veniremen was connected with the insurance company which wrote the policy issued subsequent to the injury.¹

The principle was announced in Pekin Stave Manufacturing Company v. Ramey, 104 Ark. 1, 147 S.W. 83, that if counsel for plaintiff, acting in good faith, had reason to believe any of the veniremen was connected with a casualty company insuring the defendant, an inquiry directed to a discovery of such fact was proper. Other cases are to the same effect.²

In Baldwin et al., Trustee for Missouri Pacific Railroad Company v. Hunnicutt, 192 Ark. 441, 93 S.W.2d 131, it was held that counsel had the right to interrogate prospective jurors to ascertain their names, residence, business, and such other information as would enable counsel to exercise the right of challenge for cause or peremptory challenge without cause.³ Other Arkansas cases cited by appellant are Williams v. Cantwell,114 Ark. 542, 170 S.W. 250, and Cooper v. Kelley, 131 Ark. 6,198 S.W. 94. In the Cooper-Kelley Case Mr. Justice WOOD, speaking for the court, said: "Questions that are intended to elicit any possible bias or prejudice that the veniremen might have, ``likely to influence his verdict one way or the other,' are always proper."

In the recent case of Ward v. Haralson, 196 Ark. 785,120 S.W.2d 322, an attorney for the plaintiff, in addressing a witness, said, "You went out there representing the state of Arkansas, representing the defendant and an insurance company, and made those measurements." It was held that this was prejudicial error.⁴

It is our view appellant has not shown that he was prejudiced by the court's refusal to permit counsel to specifically pursue the inquiry regarding the possible interest or non-interest of veniremen in an indemnity insurance company. It is not shown that any venireman was asked what his or her business was, or that an equivocal answer was given. It will be presumed that, under the court's ruling, questions within the latitude accorded were asked, or that counsel elected not to pursue the subject. It is not shown that because of doubt or uncertainty created by any of the answers given, appellant exhausted his peremptory challenges. Peremptory challenge would not have been necessary if responses to the character of questions sought to be asked by appellant had shown the right to challenge for cause, and it is appellant's contention that such showing could not be made because of limitations imposed by the court.

Instruction No. 2 told the jury that "the defendant cannot be held liable for the result of any act or omission of Victor Wild, the result of which could not have been reasonably foreseen or anticipated by Victor Wild."

It is urged that the measure of care contemplated by the law was not what Victor Wild could have foreseen, but what a man of ordinary prudence, in the circumstances, would have anticipated.⁵ The instruction is not inherently wrong.⁵ There was only a general objection. Effect of the instruction was merely to tell the jury that liability does not attach to one who, without fault of his own, is precipitated into an unavoidable accident. In Taggart v. Scott, 193 Ark. 930, 104 S.W.2d 816, an instruction similar to the one here complained of was given.⁶ We there held that, properly construed, the instruction told the jury that ordinary care was required.⁷

The vice urged against instruction No. 14 is that it told the jury that operation of the motorcycle by appellee's employee at an excessive speed, or running the motorcycle past the street car at the intersection in violation of city ordinances, "would not of itself or themselves conclusively establish negligence."⁸

We have frequently held that violation of a state law, or violation of a city ordinance, is merely evidence of negligence, and does not constitute negligence per se.⁹

Instruction No. 16 told the jury that the rule of law requiring drivers to exercise care commensurate with the dangers reasonably to be anticipated did not require Victor Wild to anticipate appellant's action.¹⁰ Appellant insists that it is for the jury to find, in a particular case, whether violation of a safety ordinance constitutes negligence. We think any uncertainty in that part of the instruction to which exception is taken was cured by other language in the same instruction which told the jury that "failure of Victor Wild to anticipate such action, if any, on the part of plaintiff, would not establish conclusively that Victor Wild was negligent in passing said street car."

Finally, appellant insists that it was error to give multiple and duplicate instructions at the request of defendant. It is true a great many instructions were given; yet, they are not duplicates. It is better practice to limit instructions to the law applicable to essential subjects of controversy brought out by the evidence, but in the instant case the record does not disclose an abuse of the privilege each side to the controversy had to submit its theory under appropriate instructions.

The judgment is affirmed.

¹ "The plaintiff objects to the ruling of the court in reference to permitting the plaintiff to have the jurors answer specifically whether they have any business connections with an insurance company writing accident insurance on vehicles or motor vehicles in Little Rock, for the reason that notwithstanding that these defendants have stated that they didn't have any such insurance at the date of this injury, yet they say that they have a policy, for which they were then negotiating, and which was written a few days thereafter. If any venireman in the prospective jury panel is connected with that insurance company the plaintiff ought to know it so that the plaintiff might use a challenge upon such prospective juror. That is all."

² In the Pekin Stave Company Case the court said: "If counsel for plaintiff honestly and in good faith thinks that any of the veniremen is in any way connected with a casualty company insuring the defendant against loss for the injury complained of in the case, he can ask the jurors on their voir dire relative to this. If, however, his real purpose is to call unnecessarily the attention of the jury to the fact of the insurance and thereby to prejudice them against the defendant's rights, then this would be clearly an abuse of this privilege and should be promptly stopped by the trial judge."

³ A paragraph in the Baldwin Case is: "We think counsel had the right to interrogate the jurors to determine their names, residence, business, and such other information as would enable him to exercise his right of challenge for cause or peremptory challenge without cause. In Clark v. State, 154 Ark. 592, 243 S.W. 868, we held that a party is entitled to the same latitude in examining a juror to determine whether to exercise a peremptory challenge as when seeking information relative to challenge for cause, subject to the sound discretion of the court. The court not only denied counsel this right, but in doing so — facetiously, no doubt — hurtful, nevertheless — stated that counsel was unfortunate in not knowing the jurors by name, because he did not live in Saline county. The error, however, is the denial of a litigant the right to try to determine, in good faith, by examination on voire [voir] dire, who and what the jurors are who are to try his case."

⁴ In the Ward-Haralson Case it was said: "The statement of counsel for appellees, injecting into the case the fact, if it be a fact, that appellants had insurance coverage, was wholly inexcusable, uncalled-for by anything that had previously occurred in the case, and was highly prejudicial. We think the remarks of the court were not sufficient to remove the prejudice, and that a mistrial should have been declared. The obvious and only purpose in making the statement was to advise the jury that an insurance company would have to pay any judgment rendered. This was error." Instruction No. 2 reads: "You are instructed that the defendant cannot be held liable for the result of any act or omission of Victor Wild the result of which could not have been reasonably foreseen or anticipated by Victor Wild. If you find that the injuries of the plaintiff were sustained in such manner as could not have been reasonably anticipated or foreseen by Victor Wild by the exercise of ordinary care on his part, the plaintiff is not entitled to recover."

⁵ Appellant's argument is: "Victor Wild was a boy whom appellee had employed to make its deliveries. It was enough to render appellee liable if the result of the act or omission of this boy causing the injury to appellant could have been reasonably foreseen or anticipated by a man of ordinary prudence, under the circumstances, whether the results of such acts or omissions could have been ``foreseen or anticipated by Victor Wild' or not. Appellee had no right to employ a boy to make its deliveries over the streets of a populous city on a motorcycle and then have the question of its liability for his acts or omissions turn on whether this boy could foresee or anticipate the result of such acts or omissions. Appellant had a right to have appellee's liability depend upon whether a man of ordinary prudence could have reasonably foreseen or anticipated the result of such acts or omissions." NOTE: The record as abstracted does not show the age of Victor Wild.

⁶ The Taggart-Scott instruction was: "You are instructed that the defendant cannot be held liable for the result of any act or omission, the result of which could not have been reasonably foreseen or anticipated. And in this case, if you find that the injuries and damage, if any, sustained by the plaintiff could not have been reasonably anticipated or foreseen, by the use of ordinary care by the defendant, the plaintiff is not entitled to recover."

⁷ In commenting upon the instruction in the Taggart-Scott Case, this court said: "It is argued that this instruction in effect told the jury that appellant could not recover if it found that the injuries sustained by her in person and to her car could not have been reasonably anticipated or foreseen by appellee's driver. We think, properly construed, the instruction means, and the jury were told, that appellee would not be liable unless injury and damage to appellant or her car could have been, by the exercise of ordinary care, anticipated or foreseen by appellee's driver."

⁸ Instruction No. 14: "Even though you believe from the evidence that Victor Wild was operating his motorcycle at an excessive rate of speed just prior to or at the time of the accident or passed the street car then being operated by W. C. Bently under circumstances which constituted a violation of one or more ordinances of the city of Little Rock, you are instructed that such act or acts, if any, of the said Victor Wild, would not of itself or themselves conclusively establish that Victor Wild was guilty of negligence, but such act or acts, if any, may be considered by the jury only for the purpose of determining whether or not Victor Wild was guilty of negligence, and even if you find that Victor Wild did violate one or more ordinances of the city of Little Rock, either with respect to the then speed with which he was operating said motorcycle or the circumstances under which he passed the street car, you must further find, before you find for the plaintiff, that such act or acts, if any, were the sole and proximate cause of the injury."

⁹ Instruction No. 16 reads as follows: "If you believe from the evidence that the plaintiff, just before the accident, attempted to cross Victory street, at a point several feet north of the cross-walk which is located on the north boundary of the intersection of Second and Victory streets, and that at the time he made such attempt he was trotting or hurrying across Victory street to cross said street ahead of a northbound street car which then was entitled to the right-of-way over the plaintiff, and that plaintiff's view of the motorcycle then being operated by Victor Wild was obstructed by the street car, you are instructed that the rule of law which requires drivers of motorcycles to anticipate the presence of pedestrians upon the street and to exercise reasonable care to avoid injuring them and which requires such drivers to exercise care commensurate with the dangers reasonably to be anticipated, would not require Victor Wild to anticipate such action, if any, on the part of the plaintiff, and the failure of Victor Wild to anticipate such action, if any, on the part of the plaintiff, would not establish conclusively that Victor Wild was negligent in passing said street car."

¹⁰ Shipp v. Missouri Pacific Transportation Company, ante p. 104, 122 S.W.2d 593, and cases therein cited.

HUMPHREYS and MEHAFFY, JJ., dissent.