Opinion
38686, 38700.
DECIDED FEBRUARY 14, 1961.
Action for damages. Richmond Superior Court. Before Judge Kennedy.
Fulcher, Fulcher, Hagler Harper, J. Walker Harper, Wm. C. Reed, for plaintiffs in error.
Sanders, Thurmond Hester, Glen B. Hester, contra.
Since policy holders of some insurance companies are "interested" in the profits of the company, where a defendant is admittedly covered by liability insurance, it is not error to purge prospective jurors who are policy holders in the absence of a showing that no policies are issued by the particular company which would create such interest by its policy holders.
DECIDED FEBRUARY 14, 1961.
James and Frances D. Lane filed their separate actions against Arthur J. Williams and W. H. Reeves to recover their respective damages because of a collision between an automobile being driven by James Lane and a truck owned by the defendant Reeves and being driven by Reeves' employee, the defendant Williams, in the scope of his employment. After the call of the cases, they being tried together, but before the jury was stricken, counsel for the plaintiffs asked the prospective jurors: "Are any of you policy holders in the American Fire Casualty Insurance Company?" Immediately after such question was asked counsel for the defendants moved for a continuance until the next term because the question suggested to the prospective jurors that the defendants were covered by insurance. The motion was overruled, and after verdicts for the plaintiffs were returned the defendants moved for new trials on the usual general grounds, which were later abandoned, as well as on one special ground, the refusal to grant the motion for continuance until the next term. The trial court overruled the motions for new trial and the defendants excepted to such judgment adverse to them.
The sole question to be decided in both cases is whether the trial court erred in refusing to grant the defendants' motion for a continuance, which motion was made after the plaintiffs' counsel asked the prospective jurors: "Are any of you policy holders in the American Fire Casualty Insurance Company?"
Assuming, but not deciding, that the motion was proper (see Fievet v. Curl, 96 Ga. App. 535, 536, 101 S.E.2d 181), the question asked the prospective jurors was not an improper question per se. In the case of Parker v. Bryan, 96 Ga. App. 283, 284 ( 99 S.E.2d 810), it was held not to be error for the prospective jurors to be asked: "Are either of you policy holders, stockholders, employees of, or relatives of any stockholders, employees or policy holders in the Great American Indemnity Company?" In that case, as in the present case, interest of the insurance company was admitted, and here it is admitted that stockholders and employees and their relatives were properly purged from the prospective jurors, and the sole objection deals with the policy holders, and under the decision in the Parker case, supra, and Code Ann. § 59-705 such question was proper. There was no showing, and this court cannot take judicial notice, of whether the insurance company was a "stock" or "mutual" company or whether it issued contracts whereby the policy holders received dividends. The trial court did not err in overruling the motions for new trial.
Judgments affirmed. Bell, J., concurs. Felton, C. J., concurs specially.
The gravamen of the exception in this case is that the following question was propounded to prospective jurors: "Are any of you policy holders in the American Fire Casualty Insurance Company?" and that the effect of the question was to inform the members of the jury that the insurance company was interested in the outcome of the case. It does not appear in the special ground of the amended motion that any juror disqualified by reason of such question. The court, after having asked the above question of the jury, qualified the jury with reference to their employment by the insurance company, as to whether they were stockholders in the insurance company and as to whether they were related to a stockholder in the company. There was no objection to this latter qualification of the jurors. This latter qualification gave the jury the same information which was given by the question objected to, namely, whether the jurors were policy holders in the insurance company. Since it does not appear that any member of the jury disqualified because he was a policy holder, whatever error the court committed, if he committed any, by asking the question under attack, was harmless because the jury obtained the insurance information in a manner admittedly proper otherwise than by qualification as to policy holders.