312 Ky. 776 | Ky. Ct. App. | 1950
Affirming.
Appellee, Mutual Benefit Health and Accident Association, had issued an accident insurance policy ■ to "William E. Johnson, husband of appellant, Madge Johnson, wherein appellant was the designated beneficiary. No question has been raised as to the validity of the policy: It was stipulated that all premiums had been paid at the time of Johnson’s death and that proof of loss was in form and order. On February 25, 1948, Mr. Johnson died from gunshot wound. Mrs. Johnson instituted this action to recover on the policy for accidental death. The Company defended on the ground that Johnson met his death by suicide, relying on this provision of the policy: “* * * against loss of life.* * * resulting directly and independently of all other causes, from bodily injuries
On trial of the cause, the jury returned a verdict in favor of the insurer. Mrs. Johnson appeals.
As there is no claim of insufficiency of evidence to sustain the verdict, it will not he necessary to discuss the evidence relative to the question as to whether or not Johnson met his death accidentally or intentionally.
It is contended, first, that the trial court was illegally constituted because of the failure of a juror by the name of Howard to answer correctly a question put to him on voir dire examination. This juror appears to have been an officer in the Owensboro Federal Savings and Loan Association, which had a mortgage on Mrs. Johnson’s property. On voir dire examination, this question was propounded to the jury: “Do any of you have any other reason to offer why you cannot sit in this case and give the plaintiff, or the defendant, a fair verdict according to the evidence and under the instructions of the court?” Mr. Howard remained silent, indicating thereby no reason why he could not sit in the case and render a fair verdict therein. It is argued that this Court has repeatedly held that where a juror fails to disclose on voir dire any interest, however slight, in the subject matter of the action, or any fact or relationship to the subject matter of the parties which might influence him or deprive the parties of a fair trial, thereby depriving the parties of their right to challenge peremptorily, a new trial will follow as a matter of law. Hess’ Adm’r v. Louisville & N. R. Co. et al., 249 Ky. 624, 61 S. W. 2d 299, is cited in support of this view. The above case treats basically the question involving the interest of a juror in the subject matter of litigation and recognizes fully the standard of disinterestedness and impartiality applicable to every juror sitting in a case.
In Drury v. Franke, 247 Ky. 758, 57 S. W. 2d 969, 88 A.L.R. 917, the court discusses quite elaborately the reasons why a litigant is entitled to a new trial because of .false answer given by a juror on voir dire examination. See also Schreiber v. Roser, 258 Ky. 340, 80 S. W. 2d 1.
As stated in appellee’s brief, it is difficult to determine whether appellant complains that the juror failed
In connection therewith, another point urged is that the jury based its verdict on facts and evidence other than that given at the trial, in that this juror, Howard, made statements to the jury about the mortgage which his Company held on appellant’s property. Obviously, this would tend to create sympathy for appellant and is calculated in no way to prejudice the rights of appellant.
Complaint is next directed to refusal of the court to admit as exhibits a small bottle of- oil and rag. The alleged accident happened early Saturday afternoon in the bathroom of the Johnson home. Appellant undértook, through her daughter, to introduce evidence about a small bottle of oil and rag which the daughter found under the bathtub on Monday following the shooting. Appellee objected to the introduction of this evidence on the ground that the integrity of the rag and bottle had not been established. It is pointed out that, undoubtedly, during the excitement which would naturally follow an accident of this character, numerous persons had been in the bathroom between the hour of the shooting and the time these proposed exhibits were found. We think, under the circumstances, the court properly excluded them.
It is also insisted that it was error to allow Mr. Tappehorn, the Insurance Company’s Claim Agent, to testify on behalf of defendant below after the introduction of other evidence in chief. Especially so since this
Finally, it is contended that the court erred in allowing only 25 minutes to a. side for final argument. The jury heard the testimony of 14 witnesses. The trial consumed more than a full court day. The record does not show whether the time, as given, was arbitrarily limited or set by the court, or arrived at by agreement. It does not show that more time was requested, or -that any objection or exception was made to the limitation of 25 minutes. This point was raised in motion and grounds for new trial, but no mention of it is made in the bill of exceptions. There must be some basis in the record or we cannot consider such complaint.
We find no error prejudicial to the rights of appellant.
The judgment is affirmed.