Williams v. Cantwell , 114 Ark. 542 ( 1914 )

Smith, J.,

(.after stating the facts). It is earnestly insisted ¡that counsel for appellees committed prejudicial error in Ms conduct before the court in interrogating counsel for appellant in regard to his connection with the case and in the examination of the jurors upon their voir dire; and we agree with tMs contention.

The authority of the attorney and the duty" of the trial court in such matters was recently considered by this court in the case of Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, in which case Mr. Justice Frauenthal, speaking for the court, said:

“If counsel for plaintiff honestly and in good faith thinks that any of the vemremen 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 tMs. 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. In oase it appears that prejudice to the rights of the defendant does result therefrom, it would ©all for a new trial or a reversal of the judgment on appeal. In an action by a servant against Ms master for damages growing out of a personal injury, it is improper for the jury to take into consideration the fact that the defendant is indemnified against accident to his employees. Evidence of such fact could throw no light upon the issue involved in the .case, and would be wholly incompetent. 2 Labatt, Master and Servant, § 826.”

(1-2) It is, of course, true that the trial judge must be clothed with much discretion in determining what questions may be asked veniremen by an attorney or veniremen on their voir dire as a basis for challenging them. But that discretion is subject to review and, as stated in the case above cited, if it appears that the attorney’s real purpose is to call unnecessarily the attention of the jury to the fact that a party to the litigation is insured against liability, such action should be promptly stopped by the trial judge 'and, where it appears that prejudice to the rights of the defendant results therefrom, the judgment must be reversed on appeal. And we are of the opinion that tMs inquiry was unnecessarily pursued in the present cases. It will be observed that the attorneys in the case cited are the same attorneys who were engaged in the trial of the present cases, and appellee’s attorney appears to have known, not only that Mr. Wynne did represent an insurance company, but to have known the particular company wMch he represented, and his speech before the court, as well as his questions to the jurors, appears to us to have unnecessarily advised the jurors of the fact that appellant was insured against liability and that he would not be required to pay any verdict which they might render against Mm. Information as to any juror’s connection with any insurance company could have been obtained in a less dramatic manner by asMng each of the jurors if he represented or was connected with any casualty company insuring employers against liability, or if he was connected with any insurance company, or any other proper question which might have tended to disclose whether any juror had any bias or prejudice likely to influence his verdict one way or the other; and had any juror answered that he was so connected with any such insurance company it would not have been improper to have permitted a more minute inquiry of such juror. But no such necessity appears to have éxisted in this case, and the purpose and effect of counsel’s remarks addressed to the court and his questions to the jurors appear to have been to advise the jury that appellant was insured against liability in the Home Life and Accident Insurance Company and would not have to pay any judgment for damages which they might render against him.

(3) It is insisted that no prejudice resulted from the action of counsel even though his conduct was improper, as very small verdicts were rendered in each of these cases. But these verdicts were, by no means nominal. Upon the contrary, they were substantial, and, while it is true that one view of the evidence might have authorized even larger verdicts than were returned, it is yet true that, according to another view of the evidence, the verdicts were grossly excessive for the trifling injuries which appellees sustained, according to that view of the proof. In the opinion of the court, this i® a proper case in which to hold that counsel overstepped the bounds of propriety. :

The court gave numerous instructions in the cases, and error is assigned in the action of the court in giving and refusing instructions. But we think that the instructions, when read as a whole, fairly and properly present the questions of fact for submission to the jury.

(4) We think the court committed no error in permitting counsel for appellees to read from the depositions of the witnesses, Nichols and Dodson. It is true these witnesses were sworn .in behalf of the appellees, but they made certain statements at the trial which apparently were in conflict with statements contained in their depositions, and as the statements made at the trial were damaging to appellees’ theory of the ease they had the right to contradict them by proof of prior statements. The rule in snch cases is stated in Jones on Evidence (2 ed.), § 854, which reads in part as follows:

“Although the weight of authority sustains the view that a party can not prove the contradictory statements of his own witness to discredit him, yet the party is not wholly without remedy, if surprised or deceived by the testimony. In such a case, he may interrogate the witness in respect to previous statements inconsistent with the present testimony, for the purpose of proving his recollection. He may, in this way, show the witness that he is mistaken, and give him an opportunity to explain the apparent inconsistency.” Besides, the statute provides that while a party producing a witness is not allowed to impeach his credit by evidence of bad character, unless it was in a case in which it was indispensable that the party should produce him, he may contradict him with other evidence, and by showing that he has made statements different from his present testimony. Section 3137, Kirby’s Digest.

(5) We think no error was committed in permitting appellees to use the depositions of the witness, Doctor Johnson and to read in evidence the hypothetical question in response to which he had expressed an opinion as to the extent and severity of the injuries sustained by appellees. It is true that these depositions were taken before the trial and that, therefore, no witness had testified to the statements contained in the hypothetical question; but this is necessarily true in any case if the evidence of an expert witness is ever to be taken by deposition. Of course, at the trial .the court must say whether or not there is sufficient evidence before the jury to permit an expert witness to express an opinion. If, at the trial, when the deposition is read, there is no proof of the facts recited in the hypothetical question, then, of course, such question should be excluded as abstract. The requirements in regard to hypothetical questions were thoroughly considered in the case of Taylor v. McClintock, 87 Ark. 243, in which case the rule upon this question was announced as follows:

“Hypothetical questions must fairly reflect the evidence, and unless' they do, the resultant opinion evidence is not responsive to the real facts, and can have no probative force. Quinn v. Higgins, 24 N. W. 482. The hypothetical case must embrace undisputed facts that are essential to the issue. In taking the opinion of experts, either party may assume as proved all facts which the evidence tends to prove. The party desiring opinion evidence from experts may elicit such opinion upon the whole evidence, or any part thereof, and it is not necessary that the facts stated, as established by the evidence, shall be uneontroverted. Either party may state -the facts which he claims the evidence shows, and the question will not be defective if there be any evidence tending to prove such facts.”

The trial court should exclude .any expression of opinion which is not predicated upon the evidence before the jury, but the enforcement of this rule does not require the exclusion of the opinion of an expert as stated in a deposition taken before ¡the trial, if that opinion is based upon .an hypothesis which assumes the existence only of such facts as have been testified to at the trial.

For the error indicated the judgment will be reversed and the cause remanded for a new trial.

Mr. Justice Kirby dissents.