173 Ky. 200 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
The trial resulted in a verdict for the appellee; and from the judgment entered thereon, this appeal is prosecuted.
Appellant is not entitled to the-reversal asked on the first ground urged by him. While under subsection 8, section 606, Civil Code, he clearly had the right to take the deposition of appellee as if under cross-examination, it is not made to appear from the bill of exceptions that he was deprived of that right by any ruling of the trial court. It does, however, appear from the record that in obedience to a notice that his deposition was desired and a subpoena served upon him, appellee went to the office of appellant’s counsel for the purpose of giving his deposition as demanded by the latter. After a few preliminary questions, which had no bearing upon the cause of' the accident in which appellant was injured, appellee was asked certain questions by appellant’s counsel, intended to elicit information as to whether he had, at the time of the accident, an indemnity policy in the Casualty Company of America, protecting him. against loss in case of injury resulting to others from the use by him of his automobile, and whether, the counsel making defense for appellee in this case were not the regularly retained counsel of the Casualty Company of America and employed by it to make such defense. The foregoing questions and each of them were objected to by counsel present representing appellee, and upon the advice of the latter he declined to answer them. The questions objected to and not answered are Nos. 5, 6, 7, 8, 9, 10, 11 and 12, contained in the deposition of appellee, which appears in the record. The notary’s certificate to the deposition shows that upon appellee’s refusal to answer these questions, the deposition was discontinued by agreement of the parties, and, further, that “the proceedings were referred to the
Moreover, appellant could not have been prejudiced by the refusal of appellee to answer the questions or complete the deposition, as the latter testified on the trial, and appellant did not ask a continuance of the case because of his failure to obtain appellee’s deposition, or on the ground of surprise, or that the taking of the deposition was necessary in preparing his defense.
In Owensboro City Ry. Co. v. Rowland, 152 Ky. 175, it was complained by the appellant that the trial court had erred in refusing an order requiring appellee to give his deposition. In passing on this contention we said:
“The trial court manifestly erred in refusing the order appellant asked to compel appellee to give his deposition and thereby answer certain questions asked by appellant’s counsel. The right of appellant to take his deposition was conferred .by subsection 8, section 606, Civil Code, which provides:
“ £A party may be examined as if under cross-examination at the instance of the adverse party, either orally or by deposition as any other witness; but the party calling for such examination, shall not be concluded thereby, but may rebut it by counter testimony.’
“It is not meant by this section that in order to take a deposition for use in an action at law, the witness must be of a class named in section 554, Civil Code ; but it applies to the taking by either party to the action, of the deposition of the adverse party.....We do not, however, agree with appellant’s counsel that the error of the court in question authorizes a reversal of the judgment appealed from. It is not made to. appear*204 that the error was prejudicial. Appellee testified on the trial, and appellant did not ask a continuance of the case on the ground of surprise or because of its failure to obtain appellee’s deposition in advance of the trial; nor was it claimed that by reason of such failure it was prevented from preparing or making its defense.”
Appellant’s second contention possesses little merit. It does appear from the record that Ms counsel moved to be allowed to ask the jury panel on their voir dire whether they or any of them owned a policy of accident or casualty insurance in the Casualty Company of America, or whether they or any of them were stockholders, servants or employes of the Casualty Company of America, or were related or connected in anywise with Booker & Kinnard or Owen E. Mann, local agents of the Casualty Company of America in the city of Louisville. It also appears from the record that the motion as to each and all of these questions was overruled by the court, to which appellant excepted. In support of the above motions the affidavits of appellant and his counsel were filed. It is not, however, stated in either of these affidavits that the appellant or his counsel had any information to the effect that any member of the jury was in any manner connected with or interested in the Casualty Company of America. It is only stated therein that “it is possible or even highly probable” that the panel contained jurors whose relations with the insurance company mentioned, or its agents, friends, lawyers, parties or stockholders, would give cause for appellant’s objecting to their serving upon the jury. It was not made to appear by either of the affidavits that appellant’s counsel, at least, was not personally acquainted with the members of the jury constituting the panel, or that he did not know the occupation or business of each of them.
In view of the situation presented by the record, we are unprepared to say that the refusal of the trial court to allow the jurors to be interrogated as demanded by appellant was an abuse of discretion or prejudicial to any of his substantial rights. From the institution of the action down to the conclusion of the trial the repeated and persistent efforts of appellant to get before the court and jury the fact that appellee held a policy of indemnity insurance in the Casualty Company of America upon his automobile, protecting him against
We think it fairly evident that these efforts to bring to the attention of the jury the existence of the fact that such a policy, was held by appellee was done to prejudice their minds by making upon them the impression that if a judgment were obtained, it would be paid by a New York insurance company rather than by appellee, a citizen of the city of Louisville, although appellant, through his counsel, well knew that he was not entitled to join the former in the suit or to recover against it therein any part of the damages claimed. If the facts and circumstances referred to were sufficient to induce in the mind of the trial court the belief that such was appellant’s motive (and we indine to the opinion that they were), it had good reason to doubt his good faith in endeavoring to inject into the case the insurance matter. And the absence of good faith on the part of appellant justified the ruling of the court in refusing to permit, the jurors to be asked on their voir dire the questions, the exclusion of which is complained of.
In Duncan Coal Co. v. Thompson’s Admr., 157 Ky. 304, the probability of injustice resulting to the defendant in the state of case 'suggested is recognized and condemned. In the opinion, it is said:
“We have recognized the propriety of such a question where counsel for plaintiff has information that the defendant has indemnity insurance, and that some member of the jury is interested in the insurance company, and the question is asked in good faith. Dow Wire Works Co. v. Morgan, 96 S. W. 530; Owensboro Wagon Co. v. Boling, 107 S. W. 264. This privilege, however, is not only liable to abuse, but is frequently abused. While the question is asked ostensibly for the purpose of determining the bias or interest of the juror, in a great majority of cases the sole purpose of such a question is to bring to the attention of the jurors the fact that any verdict they may render will impose no liability on the defendant, but will be paid by some one
As in this matter the court did'not abuse its discretion, and the verdict of the jury was the only one authorized by the evidence, no reason is perceived for our holding that appellant was prejudiced by the ruling in question; hence the judgment is affirmed.