Saltas v. Affleck , 99 Utah 381 ( 1940 )

I concur in the order granting a new trial. The record of the trial in which the $800 verdict was rendered is not before us. Consequently, we must assume that the evidence there adduced was such that the court was justified in concluding that such verdict was rendered by the jury under a misapprehension of the instructions of the court or under the influence of passion or prejudice.

As to the third point discussed, while Instruction No. 11 was, taken alone, erroneous, I am of the opinion that the instructions, read as a whole, could not have mislead the jury. Consequently, the giving of such instruction was not reversible error.

As to the second point, I am of the opinion that the errors involved therein merit reversal. Three separate exceptions are involved: (1) The overruling by the court of defendant's objection to the questions asked of the jurors, discussed in the opinion, and the refusal to order a mistrial because of the alleged misconduct in asking the question; (2) the court's overruling of objection to a question propounded to the witness Christensen as follows: "Q. Now, let me call your attention to this. Right after the accident you made out an affidavit to — you gave a statement to a man by the name of Parkinson, who is an adjuster for an insurance company?", and the refusal of the court to order a mistrial based on the asking of such question by counsel; and (3) misconduct of counsel during his argument to the jury in that he stated to the jury that "on the day of the accident an investigator was out at the scene of the accident in this case;" and, further in his closing argument to the jury stated in substance, that the defendant secured an attorney who spends all his time in the defense of this class of cases.

As pointed out in the case Balle v. Smith, supra, a juror may be examined as to his connection, if any, with a casualty company, but as the court states at page 192 of 81 Utah, 17 P.2d at page 230:

"The examination must be in good faith and precaution taken to ask the questions in such manner as will not convey the impression that the defendant is in fact insured. It would be misconduct on the part of counsel for plaintiff * * * to so frame his questions that they go beyond what is reasonably necessary to serve the legitimate purpose of eliciting the fact he is entitled to adduce in order to secure a jury free from bias and prejudice."

See also Reid v. Owens, 98 Utah 50, 93 P.2d 680, 684, 126 A.L.R. 55, 62.

Such rule was violated by counsel. The first question on the subject of insurance asked of almost every prospective juror was whether he was interested as an officer, stockholder, or employee in the Northwest Casualty Company of Seattle, Washington. No preliminary inqury was made as to the juror's connection with casualty companies. Though such general question had been asked and the answer had been given in the affirmative, the next step would properly be — unless the purpose of the questioner was to reveal the irrelevant fact — to inquire as to what company or companies he was connected with. The repetition to the jurors of the name of a specific casualty company of necessity would convey to the minds of the jurors the thought that such company was interested in the case. When there is added to this conduct the further allusions, hereinabove set out, to the probable connection of an insurance company with the action, the juror would be surprisingly naive who would not understand that the real party in interest was the named insurance company. In view of the comparative frequency with which the problem here involved arises it is thought proper to call to the attention of counsel and trial courts the method of examining jurors relative to their interest, if any, in insurance companies suggested by the Supreme Court of Michigan in Harker v. Bushouse, 254 Mich. 187,236 N.W. 222, and approved by this court in Balle v. Smith, supra, at page 192 of 81 Utah, 17 P.2d 224. Were such suggestion followed, we would perhaps be less often called upon to pass upon the question just discussed.