Salerno v. Oppman

This cause was heard and determined in the Common Pleas Court. It was tried to a jury, and the jury returned a verdict for the defendant, Henry G. Oppman. The pleadings disclosed that the action was one founded on allegations of negligence. There is but one alleged error submitted for our consideration. In the voirdire examination of prospective jurors the Common Pleas Court refused the plaintiff the right to ask the following questions:

"1. Q. Are any of you financially interested in any company writing indemnity or public liability insurance?

"2. Q. Are any of you, or is anyone in your immediate family engaged in any way in the business of indemnity insurance or public liability insurance?

"3. Q. Is there anyone in your immediate family connected with the adjusting or claim department of any public liability or indemnity insurance company?"

Exception was taken. It is claimed that by reason of the latest pronouncement of the Supreme Court of Ohio these questions were competent since the good faith of plaintiff's attorney, in the asking of the questions, was not in any way questioned, and the trial court therefore erred in refusing to permit these questions.

We are again called upon to deal with a much mooted question of the latitude to be allowed counsel in interrogating prospective jurors on voir dire examinations as to their connection with or interest in a casualty insurance company. The refusal of the trial court to permit the interrogation above set forth was in reliance upon the case of Vega, Admr., v. Evans, 128 Ohio St. 535, 191 N.E. 757, which, at the time of trial of this case, was the latest pronouncement of the Supreme Court of Ohio on this subject.

Paragraph 3 of the syllabus of Vega, Admr., v. Evans, supra, reads as follows:

"It is error to permit the examination of a prospective juror on his voir dire as to his connection with, interest in, or relationship to any liability insurance company as such unless such insurance company is party to the litigation or unless it has theretofore been disclosed to the court by such company or by the defense that such insurance company is actively and directly interested in the litigation. (Paragraph 3 of the syllabus ofPavilonis v. Valentine, supra, overruled.)"

The case of Pavilonis v. Valentine, 120 Ohio St. 154,165 N.E. 730, in explicit terms permitted such inquiry when asked in good faith. In Vega, Admr., v. Evans, supra, the Supreme Court departed from this view and expressly overruled it. If the decision in the Vega case remained undisturbed, the trial court of necessity would have been compelled to refuse the interrogation. In the recent case of Dowd-Feder, Inc., v.Truesdell, 130 Ohio St. 530, 200 N.E. 762, the Supreme Court of Ohio on March 18, 1936, modified the view expressed in Vega,Admr., v. Evans, supra, and also the view expressed in Pavilonis v. Valentine, supra. The syllabus of the case reads as follows:

"1. The purpose of the examination of a prospective juror upon his voir dire is to determine whether he has both the statutory qualifications of a juror and is free from bias or prejudice for or against either litigant.

"2. In the examination of a juror upon his voir dire, in cases involving property damage, personal injury or both, he may be asked the general question whether he has or has had any connection with or interest in a casualty insurance company. If the answer be in the affirmative, the juror may then be asked the name of such company and the nature of his connection with or interest therein. (Paragraph three of the syllabus of Pavilonis v. Valentine, 120 Ohio St. 154, and paragraph three of the syllabus of Vega, Admr., v. Evans, 128 Ohio St. 535, modified.)

"3. All questions in the voir dire examination must be propounded in good faith. The character and scope of such questions cannot become standardized, but must be controlled by the court in the exercise of its sound discretion, the court having for its purpose the securing to every litigant an unbiased jury."

It is urged, relying upon the last decision of the Supreme Court, that the trial court committed error in refusing the interrogation since there was no question of good faith on the part of plaintiff's counsel. Counsel for defendant in error interpret the last decision of the Supreme Court to mean that while it is not error to permit questions of this kind in thevoir dire examination it is not error on the part of the trial court to reject such inquiry, because the permitting or refusal to permit such questions lies within the sound discretion of the trial court. A reading of the syllabus in the case of Dowd-Feder,Inc., v. Truesdell, supra, can lead to no other conclusion than that the Supreme Court intended to establish the law that it is the right of counsel in every law suit on voir dire examination to inquire of prospective jurors concerning their possible connection with, interest in, or relationship to, a casualty insurance company. But the scope and extent of such inquiry lies within the sound discretion of the trial court.

The language used in the opinion of Robinson, J., in Pavilonis v. Valentine, supra, at 159, is highly convincing:

"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."

It is our opinion that the Supreme Court of Ohio in Dowd-Feder,Inc., v. Truesdell, supra, adopted the reasoning of Robinson, J., with the modification, (1st) that the inquiry must be in good faith, and not for the purpose of arousing prejudice, and (2nd) that the scope of the inquiry lies solely within the discretion of the trial court. If the contention of counsel for defendant in error as heretofore expressed is correct, namely, that the discretionary power which the Supreme Court lodged in the trial court relates not only to the extent and scope of the inquiry, but also to the subject-matter of the inquiry as well, we would be led into additional confusion. No attorney could possibly know in advance how that discretion would be exercised. Under the interpretation of counsel for the defendant of the latest decision of the Supreme Court, counsel would attempt such an inquiry at his own risk, as the trial court would have the power to declare a mistrial. In the opinion of Dowd-Feder, Inc., v.Truesdell, supra, at pages 532 and 533, we find the following:

"The only way to prevent those who have insurance interests or connections from sitting on juries in the trial of negligence cases is by the test applied in voir dire interrogation. * * *

"In view of the fact that neither litigant nor counsel can know personally every prospective juror, inquiry into a juror's possible connection with, or interest in casualty insurance companies is obviously necessary in order that his cause shall not be tried by a jury whose views in such cases are colored by their investments, income or other prejudicial interests."

"Any rule of law which denies a litigant reasonable latitude in the examination of prospective jurors as to their qualifications in order to enable him to exercise such peremptory challenges judiciously and intelligently, deprives him of a substantial right."

"The overwhelming weight of authority holds that where parties apparently act in good faith, considerable latitude should be allowed in the interrogation concerning the competency of prospective jurors to try the facts under investigation * * *."

We do not agree with the interpretation given the decision of the Supreme Court by counsel for defendant. It is clear to us that under the law as it now exists the right to the inquiry onvoir dire examination, made in good faith as to any prospective juror's connection with, interest in, or relation to, a casualty insurance company, is regarded as a substantial right and a proper subject of inquiry, which the trial court cannot take away from either party. But the trial court may properly control the scope and extent of the inquiry.

We therefore hold that the trial court erred in not permitting the three questions propounded to the prospective jurors, above set forth, and that the plaintiff was thereby deprived of a substantial right which requires a reversal of the case. The judgment will be reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

LIEGHLEY, P.J., and TERRELL, J., concur.