Williamson v. Hardy

RICHARDS, J.

This is an appeal from a judgment in favor of the plaintiff for damages arising out of injuries sustained by her through having slipped and fallen upon the floor of the defendant’s meat market in the city of San Diego, her said fall having been occasioned, according to plaintiff’s averments, by the slippery and unsafe condition of said floor.

The case was tried before a jury, and the first contention of the appellant is that during the proceedings for obtaining the jury, and also upon several occasions during the trial of the cause, counsel for plaintiff were guilty of misconduct in seeking to bring before the jury the fact that the action was being defended by a surety company which, though not a party to the action, was the insurer of the defendant against claims for damages. As to the alleged misconduct of counsel for the plaintiff during the process of procuring the jury it is conceded by counsel for the appellant that it is not error to inquire of the jurors if they are stockholders or interested in a certain surety company.

[1]

It would seem, therefore, that the question which was put to the jurors as a body to the point whether or not they were “the owners of stock in the Western Indemnity Company, a corporation,” by counsel for the plaintiff, cannot, standing alone, be held to furnish a basis for the appellant’s claim.

[2]

But the appellant insists that upon several occasions during the trial counsel for plaintiff persisted in making statements in the presence of the jury regarding the surety company in question which, taken in connection with the question asked upon their

voir dire

examination, showed a persistent intent to impress the jury with the fact that the action was being defended by said surety company. Upon an examination of the record in this regard we fail to find a sufficient basis for this claim. It is true that at one time during the trial

[379]

some question arose with regard to the production of certain X-ray photographs which were in the possession of the physician of the surety company, and this led counsel for the plaintiff to refer to that fact; but we find in that connection that the court instructed the jury to disregard the remarks of counsel for plaintiff in that respect, and we can find no reason in the record for assuming that the jury disregarded that instruction. Nor do we feel that plaintiff’s counsel were so far guilty of willful misconduct in connection with that episode as to justify a reversal of the case.