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

I cannot agree with the majority in holding that the court did not err when it refused to permit appellant's counsel to ask the jurors the following question: "Do any of you have any business connections with an insurance company writing liability insurance?"

In a recent case the attorney said: "I want to know if any of the jurors are employed by liability insurance companies, or engaged in the insurance business, or employed in the insurance business?" Objection was made to this question and exceptions saved, and this court said: "The question propounded by counsel for appellant was a proper one in order that he might intelligently exercise appellant's right of challenge. Smith Ark. Traveler Co. v. Simmons, 181 Ark. 1024, 28 S.W.2d 1052. That question was very much like the question in this case.

A party in a civil case not only has the right to challenge for cause, but each party has three peremptory challengers, and has as much right to get information so that he can intelligently make those challenges as he has to trial by jury. The refusal of the court in this case to permit the question to be asked absolutely denied the appellant the right to ascertain whether any of the jurors had any business connection with the insurance company writing liability insurance. He certainly had a rights to know this in order to intelligently exercise his right to a peremptory challenge. To permit appellant to ask what business the members of the jury were engaged in does not give him the information that he seeks and which he had a right, under the law, to have.

Again this court said recently, when counsel asked the jurors if any of them were interested in any liability insurance company for protection against automobile accidents:

"It is argued that the only purpose of asking the question was to leave a false impression upon the minds of the jurors that appellant was protected by insurance against the accident, so that they would the more readily return a verdict in favor of appellees. The argument is not supported by the record. In answer to a question asked by the court, counsel for appellees stated that the question was propounded to obtain information. They were entitled to the information in order to intelligently exercise their right of challenge under the rule announced in the case of Smith Ark. Traveler Co. v. Simmons,181 Ark. 1024, 28 S.W.2d 1052." Bourland v. Caraway,183 Ark. 848, 39 S.W.2d 316.

This court, in another case, said: "In this case only one juror was questioned as above indicated, and there was nothing in the record to disclose that counsel for appellee was not acting in good faith in asking the questions to determine whether the juror had any bias or prejudice for or against either party." Ellis Lewis v. Warner, 182 Ark. 613, 32 S.W.2d 167.

In another case this 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 another' are always proper, and the rulings of the trial court in permitting such questions will never be disturbed unless there is a manifest abuse of its discretion. The questions propounded to the veniremen in the instant case in and of themselves were not objectionable, and the record does not disclose anything in the conduct of the attorney in the manner of propounding the questions, or other conduct on his part aside from this, that was calculated to cause the jury to believe that the defense was actually being conducted in the interest of some casualty insurance company instead of those who were named and who appeared as defendants at the trial." Cooper v. Kelly, 131 Ark. 6, 198 S.W. 94.

Again this court said: "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, 147 S.W. 83, 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 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." Williams v. Cantwell, 114 Ark. 542, 170 S.W. 250.

"The privilege of such questioning by the defendant for peremptory purposes should not be denied.

"The right to challenge peremptorily is sacred and valuable; and the exercise of it does not rest upon any legal qualification of the juror, but it may be exercised by the defendant for any peculiar reason, or no reason, and without legal cause." Funches v. State,125 Miss. 140, 87 So. 487.

"In civil cases it is said that peremptory challenges are allowed to protect parties, not so much from the bias or prejudice which might arise in the mind of a juror from personal dislike or hatred of those who might happen to be plaintiffs or defendants in the action, but rather that which might relate to or grow out of the subject-matter in controversy." State v. Skinner, 34 Kan. 256, 8 P. 420.

Again this court said, when the attorney asked the jurors if any of them were represented by a certain firm of lawyers, and objection was made and overruled by the court: "There was no error in this ruling. Counsel had the right to have this information in determining what peremptory challenges he should exercise." Anderson v. Erberich, 195 Ark. 321, 112 S.W.2d 634.

The right to challenge peremptorily, as said by the Mississippi court, is "sacred and valuable." It is as sacred as the right to trial by jury because, if attorneys are not permitted to examine jurors for the purpose of getting information in order to determine what peremptory challenges they shall make, the jury may be composed partly of persons who could not and would not give the party a fair and impartial trial. Besides, our statute provides, in addition to challenges for cause: "Each party shall have three peremptory challenges, which may be made only orally." Section 8343, Pope's Digest.

It would be absurd to give a party the right to peremptory challenges and then not permit him to ask questions to determine what peremptory challenges he wished to make. Some of our cases hold that the questions by the attorney must be asked in good faith. I think the attorney has the right to the information without regard to what his motive is. Of course, the trial court would have the right to prevent any attorney from doing anything that would create prejudice in the minds of the jurors.

Section 8312 of Pope's Digest provides that jurors must be of good character, of approved integrity, sound judgment, and reasonable information, qualifications that are not required of a judge. I do not think jurors are any more subject to influence, bias, or prejudice, than we are, and there is not a scintilla of evidence in this record that the attorney for the appellant did or said anything that had any tendency to create bias or prejudice in the minds of the jurors. There may be a few lawyers that would act in bad faith, but from my experience in the trial of lawsuits for forty years, I am thoroughly convinced that the great majority of lawyers on both sides, as well as the great majority of jurors, act uprightly and would not resort to any practice not justified. Since there is no evidence to indicate that the attorney in this case did anything improper, it is our duty to hold that he did not; and in judging his conduct, or the conduct of any attorney in the trial of a lawsuit, we should put ourselves in his place, because: "We are apt to be selfish in all our views, in this jostling, headlong race, and so to be right, before you censure a man, just put yourself in his place."

It is said in the majority opinion that it does not appear that any prejudice resulted to appellant. It does appear, however, that he was deprived of a sacred right, and in such cases prejudice is conclusively presumed. If one was being tried for murder and the court should conclude that the jury was prejudiced and might base their verdict on conjecture and speculation, and for that reason discharged the jury and tried the case himself, when the case came to this court on appeal there would be no more prejudice appearing than there is in this case, but no one would hesitate for a moment to declare the conduct of the judge improper, and reverse the case. I think that is what we should do here.

Mr. Justice HUMPHREYS agrees with me in the view herein expressed.