Lee v. Misfeldt , 1 Mich. App. 675 ( 1965 )

1 Mich. App. 675 (1965) 137 N.W.2d 753

LEE
v.
MISFELDT.

Docket No. 222.

Michigan Court of Appeals.

Decided November 15, 1965. Leave to appeal denied February 15, 1966.

Kelman, Loria, Downing & Craig (Morton E. Schneider, of counsel), for plaintiff.

Howlett, Hartman & Beier (William B. Hartman, of counsel), for defendant.

Leave to appeal denied by Supreme Court February 15, 1966. See 377 Mich. 702.

QUINN, P.J.

This case arose from an accident which occurred on Telegraph road near Glendale, Waterford township, Oakland county, during the evening of March 31, 1961. Plaintiff was a passenger in an automobile, owned and operated by a friend, which was proceeding in a southbound direction following another vehicle. Defendant had left her automobile unattended, with the motor running, on an incline in a parking lot adjacent to Telegraph road. Defendant's automobile rolled out onto Telegraph road causing the driver of the vehicle preceding the one in which plaintiff was riding to apply his brakes to avoid an accident. Plaintiff was injured in the ensuing rear-end collision.

Plaintiff predicated his claim of negligence on defendant's failure to secure her automobile to keep it from rolling, as admittedly it did.

After the jury had been sworn to try the case, but before commencement of testimony, plaintiff moved for a mistrial on the grounds that the trial court made a prejudicial statement in answer to a prospective juror's question concerning the involvement of insurance in the case. The motion was denied. Plaintiff renewed the motion at the conclusion of testimony and it was again denied. The case was submitted to the jury which returned a verdict of no cause for action. Judgment entered and plaintiff's motion for new trial was denied.

The first issue raised on appeal is whether or not the trial court committed reversible error in its response to a prospective juror's question on insurance during voir dire examination. In response to a question raised by a prospective juror during the examination, the court stated that insurance was not involved in the case. Plaintiff challenges this as a violation of the rule contained in CLS 1961, § 500.3030 (Stat Ann 1957 Rev § 24.13030) and claims that it was prejudicial to his case, as it indicated to the jurors that the defendant might be uninsured.

The disputed statement is contained in the following testimony:

"The Court. Were you in the courtroom and heard the questions we propounded to the jurors?

"Juror Hemp. Yes, sir.

"The Court. Are there any that you would answer yes to?

"Juror Hemp. Only thing I could say, I am afraid I would be a little prejudiced if this involves insurance companies because my wife was involved in an accident a couple years ago.

"The Court. You don't feel you could be impartial if insurance were involved?

"Juror Hemp. No, sir.

"The Court. Well, may I say to you that insurance is not involved in this case, but if you associate automobile accidents with insurance, you can't disassociate them in your mind, this might be a prejudicial position. I guess what we would have to say to you is that if you feel you can't accept my statement that this case is to be tried without any reference to insurance, that there is no insurance involved in the trial of this case, whether you feel that you could not approach the matter from that standpoint — do you feel that insurance has to be involved in every case in accidents?

"Juror Hemp. No, sir. If it involves insurance, I am prejudiced against them.

"The Court. Well, it is not involved in this case."

Under the circumstances here involved, we think that the trial court was correct in denying the motion to declare a mistrial, and in subsequently denying a motion for a new trial, based in part on such alleged error. It is unfortunate that the question of insurance ever had to enter the case, but since it inadvertently did, we are satisfied that the trial judge indicated to the jury that a question of insurance coverage was not an issue in the case. What occurred did not constitute reversible error. Herman v. Ploszczanski (1963), 369 Mich. 252.

The second issue raised is whether or not the trial court committed reversible error in excusing a juror challenged for cause.^[1] A challenge is ordinarily granted to insure a fair and impartial trial. In order to discharge a juror for cause, it is incumbent upon the challenger to show the court that the juror has preconceived opinions or prejudices, or such other interests, limitations or knowledge as would impair his capacity to render a fair and impartial verdict. 2 Honigman and Hawkins, Mich Court Rules Annotated, p 466.

A person sitting on a jury panel is presumed to be qualified and competent to serve, and the burden is on the challenging party to make out a prima facie case to the contrary. People v. Collins (1911), 166 Mich. 4. This the defendant failed to do, and it is the opinion of this Court that though defendant made her challenge for cause without first establishing on the record a proper foundation to disqualify the juror from sitting, the excusing of this juror, while improper, did not prejudice the plaintiff so as to constitute a reversible error. Church v. Stoldt (1921), 215 Mich. 469. There is no evidence that plaintiff had any objection to the juror who replaced the excused juror or to the entire panel. Reynolds v. Knowles (1923), 223 Mich. 70. The record also indicates that defendant had at least one peremptory challenge left that could have been used to eliminate this same juror.^[2]

Finding no reversible error, the trial court is affirmed, with costs to appellee.

McGREGOR and WATTS, JJ., concurred.

NOTES

[1] See GCR 1963, 511.4. — REPORTER.

[2] See GCR 1963, 511.5. — REPORTER.