DeLong v. Green , 229 Ark. 100 ( 1958 )

George Rose Smith, J.

On November 15, 1956, Phillip Green, aged nineteen, was killed in a collision between the car he was driving and a car owned by the appellant Garrett and being driven by the appellant DeLong. This action for wrongful death and property damage was originally brought by the decedent’s parents, Forace and Elvie Green. Later on Forace Green was appointed administrator of his son’s estate and in that capacity intervened as a plaintiff in the action. Upon trial before a jury the plaintiffs recovered a judgment for $23,061.47, of which $20,000.00 was awarded by the jury for the mental anguish suffered by the parents.

The principal argument for reversal concerns certain references to an insurance company that were made during the selection of the jury. Mr. Means, representing the plaintiffs, had stated that he proposed to ask the veniremen if any of them owned stock in the Southern Farm Bureau Casualty Insurance Company. Mr/ McMillan, representing the defendants, informed the court that the company in question was in fact insuring the defendants in the case. He further stated that, “as far as our information is concerned, we have no knowledge of anybody in Plot Spring county, and particularly on this jury, that has any stock in this corporation.” He went on to say that there was a conflict in the county between the farmers supporting the Farm Bureau and those supporting the Farmers Union, both of which had insurance companies, that at least two members of the jury were decidedly biased against the Farm Bureau, and that to indicate that the Farm Bureau was a defendant would affect those men. Mr. McMillan requested that the questions be limited to a reference to insurance companies in general, and, if any juror answered in the affirmative, that he then be' asked to name the particular company. “In this way,” Mr. McMillan pointed out, “Mr. Means can obtain his information without disclosing the name of the insurance company.”

Mr. Means insisted, however, that he was entitled to ask the jurors about the particular company. The trial court sustained this contention, s,nd Mr. Means then asked the veniremen four separate questions about their ownership of stock in, or their agency for, the Southern Farm Bureau Casualty Insurance Company. No juror gave an affirmative answer to any of these questions.

On some fifteen occasions we have considered the matter of questioning prospective jurors about their connection with insurance companies. The difficulty, which has made the issue a recurring one, is that of laying down a rule that will operate with fairness to both sides in the litigation. On the one hand, the plaintiff’s attorney is undoubtedly entitled to elicit information that may assist him in the exercise of his peremptory challenges. As we said in Dedmon v. Thalheimer, 226 Ark. 402, 290 S. W. 2d 16: “If counsel, in good faith, thinks that liability insurance is involved, then he may ask questions calculated to bring to light any bias or prejudice a venireman may have for or against insurance companies ... A lawyer trying a case would be rather careless if he failed to ascertain as well as possible if any one on the venire was biased or prejudiced on a question involved in the litigation, even though such question would be only indirectly involved. ’ ’

On the other hand, the fact that the defendant is insured has no bearing on the issue of negligence, and since that knowledge, as we have repeatedly held, may prejudice the jury, it is improper for the questions on voir dire to be used as a means of unnecessarily calling the jury’s attention to the fact of insurance. Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S. W. 83. Judge Frank Smith, in writing the court’s opinion in Williams v. Cantwell, 114 Ark. 542, 170 S. W. 250, had this to say: “. . . appellee’s attorney appears to have known, not only that Mr. Wynne did represent an insurance company, but to have known the particular company which 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 him. Information as to any jur- or’s connection with any insurance company could have been obtained in a less dramatic manner by asking 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 existed 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. ’ ’

In the case at bar it cannot be said that counsel’s unquestioned right to information about the veniremen necessarily required that the Southern Farm Bureau Casualty Insurance Company be referred to by name. Opposing counsel, whose good faith in the matter is not questioned, had declared that the farmers in the county supported two rival organizations, that at least two members of the panel were decidedly biased against the Farm Bureau, and that to refer to that company would have a prejudicial effect. He went further and pointed out, much as Judge Smith did in the Williams case, how the desired information might have been obtained by general questions. Despite this warning plaintiff’s counsel insisted upon naming the company and did so in four questions to the jury. It can hardly be supposed that a group of intelligent jurors did not draw the inference that the Southern Farm Bureau Casualty Insurance Company had insured the defendants, since that company was singled out in counsel’s repeated inquiries on the subject. Had there been no alternative way of examining the venire no doubt the plaintiffs’ right to information would have overridden the defendants’ objection; but there was an alternative, which the plaintiffs refused to adopt.

"We are aware that in three instances we have affirmed judgments even though a specific insurance company was mentioned during the selection of the jury. Ellis & Lewis v. Warner, 182 Ark. 613, 32 S. W. 2d 167; Halbrook v. Williams, 185 Ark. 885, 50 S. W. 2d 243; Lewis v. Cox, 187 Ark. 1163 (mem.), 58 S. W. 2d 215. We emphasize, however, that those precedents do not justify the procedure which was permitted in this instance and that the present judgment would have to be reversed regardless of what rule might be established for the future. In none of the cases just cited was there a suggestion, as there is here, that to name the company would be peculiarly prejudicial; nor was it insisted in the earlier cases that the desired information be elicited by general questions. In order to affirm this judgment we should have to go far beyond any prior case, by saying flatly that counsel has an unqualified right to name the particular insurer even though the record shows that the reference will have an especially prejudicial effect upon the jury and even though the needed information can equally well be obtained in a way that involves no such unfair advantage for either side. That view is not supported either by our earlier decisions or by the simplest notions of fair play.

We could, of course, end our discussion at this point, leaving for future determination a host of minute and finely drawn distinctions that would undoubtedly be urged in later cases. The bench and bar, however, are entitled to an expression of our views, especially if that course may reduce an area of uncertainty and thereby avoid needless appellate litigation. We therefore think it best to announce our preference for the procedure that is at once the simplest to follow and the fairest to both sides in the lawsuit: Questions about the veniremen’s insurance connections should refer only to insurance companies in general; a particular company should not be named when the information wanted can just as well be obtained by the use of general questions.

In the present case it is also contended that the plaintiffs ’ references to the Southern Farm Bureau Casualty Insurance Company were offset by the fact that the defendants were allowed to ask the jurors about their possible connection with the Emmco Insurance Company. The latter inquiry was plainly permissible, however, as the Emmco Insurance Company was actually a party to the case, having intervened to assert a subrogation claim for the damage to the Green car.

Several other asserted errors are argued in the briefs, but for the most part they are of a kind not apt to arise upon a retrial and need not be discussed. One matter, however, should be mentioned. Over the defendants’ objection the court permitted the jury to return separate verdicts for the mental anguish suffered by the father and that suffered by the mother. The case was tried under Act 115 of 1949, which allows the personal representative to recover for mental anguish sustained by the parents of the decedent and which directs that the recovery be distributed in the proportion provided by law for the distribution of personal property left by persons dying intestate. It is insisted that the court should have required the jury to return a single verdict in favor of the administrator for the total mental anguish undergone by both parents.

Without deciding the merits of this contention we point out that Act 115 was repealed by Act 255 of 1957, which by its language is applicable to all actions for wrongful death, whether arising before or after the effective date of the 1957 statute. Ark. Stats. 1947, §§ 27-906 et seq. The new act provides that the apportionment of the damages shall be made by the jury at the request of any beneficiary or party. Ark. Stats. § 27-909. We regard this as essentially a procedural change, since the substantive right to collect damages for wrongful death is continued in force, with a change in the procedural method by which the distribution of these damages is to be determined. The 1957 act will therefore be controlling upon a new trial, under the rule that procedural changes apply to pending cases. Foster v. Graves, 168 Ark. 1033, 275 S. W. 653.

Reversed.

McFaddin, Mill wee, and Robinson, JJ., dissent.