Wilson v. Thurston Co. , 82 Mont. 492 ( 1928 )

In this action the plaintiff seeks to recover damages from the defendants for personal injuries by the plaintiff sustained May 5, 1926, while crossing Montana Street in the city of Butte, by reason of being struck by an automobile alleged to have been negligently operated by the defendant W.M. Thurston, an employee of the defendant company. Upon issue joined, the cause was tried to a jury and resulted in a verdict and judgment in plaintiff's favor for $4,500. Complaining of alleged errors committed during the course of the trial, defendants have appealed. The defendants' assignments of error relate to questions permitted to be asked of prospective jurors upon voir dire examinations, over the defendants' objection, and instructions as to the law governing the case given to the jury.

1. Over objection seasonably interposed, eight prospective[1] jurors were interrogated by plaintiff's counsel as to whether they had any immediate relatives employed by any liability insurance company in the city of Butte, and responded in the negative. Were such questions so prejudicial as to warrant a new trial? In our opinion they were. Whether a juror had any immediate relatives employed by any liability insurance company in the city of Butte was of no possible relevancy in determination of the juror's qualifications to fairly try and determine the issue presented — whether the defendants, not someone else, should be held to respond in damages because of their alleged negligence. No liability insurance company was a party to the action, and the nature of the employment of relatives of a prospective juror was far beyond the scope of legitimate inquiry. The actual inference implied by such questions is that the defendants were protected by liability insurance, and it is manifest that the sole purpose of such interrogation was to prejudice the jury against the defendants in the action, whether they were insured in fact or not. Whether the defendants were protected by liability insurance or not could have no possible bearing on the question of their personal liability to respond in damages for their negligence in the operation of their automobile. The insurance company was not on trial, and the fact that by insurance contract the defendants were protected was of no concern to the jury in determination of the question as to whether the defendants through their negligence had caused the injury to plaintiff. The subject has heretofore been considered and the practice condemned by this court (Robinson v. F.W. Woolworth Co., 80 Mont. 431,261 P. 253), although it is noteworthy that that decision had not been rendered at the time of the trial of this action.

During the progress of the trial of the action now before us, the court used every endeavor to avoid prejudicing the jury by testimony regarding the fact that the defendant company was insured, but such course did not remove the prejudicial effect of the error already committed.

In the Woolworth Case we held that such questions to prospective jurors on voir dire examination, after seasonable objection interposed, constitute prejudicial error. And now, in view of the facts before us in this case, we are constrained to enforce the penalty and order a new trial.

2. Error is assigned respecting five of the court's instructions given to the jury, over defendants' objections. We have made careful study of the instructions complained of, and have considered them in the light of the evidence and of other instructions given, and find no merit in the defendants' complaint regarding them.

For the reasons stated, the judgment is reversed and the cause remanded to the district court of Silver Bow county, with direction to grant a new trial.

Reversed and remanded.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MYERS, STARK and MATTHEWS concur.