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McBurnie tt. Sea ton el at.
certain promissory notes, payable to such mortgagee, which alleges that the payee and mortgagee in his lifetime, describing himself as the guardian of certain minor heirs named, instituted a foreclosure suit in the proper court, on the identical notes and mortgage, against the defendants, and that such proceedings were had in that behalf that upon the issues duly joined therein there was a finding and judgment for the defendants, but which does not allege that the merits of the case as to the plaintiff individually were in some way involved in the issues and determined by the prior judgment, is bad on demurrer.
From the Crawford Circuit Court. N. B. Peckinpaugh and W. T. Zenor, for appellant. B. P. Douglass, J. L. Suddarth and S. M. Stockslager, for appellees.
Mitchell, J.—Elizabeth J. McBurnie brought this suit against John Seaton and wife to foreclose a mortgage. It appeared in the complaint that Seaton became indebted to William J. McBurnie, in his lifetime, to the amount of seven hundred and fifty dollars. This indebtedness was secured by four notes, payable to McBurnie, and signed by Seaton. The notes were secured by a real estate mortgage, signed by Seaton and wife.
After the death of McBurnie, which is alleged to have occurred in 1880, the notes and mortgage were regularly set off to his widow, who brought this suit.
The defendants answered that on the 15th day of September, 1878, William J. McBurnie, describing himself as guardian of the minor heirs of William J. Fields, deceased, instituted a foreclosure suit on the identical notes and mortgage, in the Crawford Circuit Court, against Seaton and wife, and that such proceedings were had in that behalf as that, upon issues duly joined, there was a finding and judgment for the defendant. Prayer that the plaintiff be held estopped, as by a former ajudication.
After the overruling of a demurrer to this answer, the plaintiff replied in substance, that the prior action was prosecuted by William J. McBurnie solely in the character of McBurnie v. Beaton el aL
guardian of the minor heirs of William J. Fields; that the defendants in that action answered certain items of indebtedness, amounting to $168, owing by William J. McBurnie, in his individual capacity, to John Seaton, and that the court, at the former hearing, did not hear any evidence, or consider or determine any questions, except such as related to the one subject, and that was whether or not William J. McBurnie, as guardian, in his trust capacity, could maintain a suit to recover on the notes and mortgage.
It was averred that the court gave judgment against the plaintiff solely on the ground that he had no right so to maintain the suit, and that the merits of the case were in nowise involved in the pleadings further than the set-off of $168, heretofore mentioned, and that they were in nowise considered or determined therein.
This reply was held insufficient, and judgment was given against the plaintiff.
As it appeared upon the face of the answer that William J. McBurnie sued in the character of guardian, it was necessary, in order to have made a good plea of estoppel by former adjudication, that it should have been averred that the merits of the case, as to the plaintiff individually, were in some way involved in the issues and determined by the prior judgment. The notes, on their face, were payable to William J. McBurnie. A suit by the payee, as guardian, did not necessarily involve the merits of the case so as to determine his right to recover in his individual capacity.
The general rule has often been recognized by this court, the effect of which is, that judgments are presumptively only conclusive against parties in the character in which they sue or are sued. Lord v. Wilcox, 99 Ind. 491; Erwin v. Garner, 108 Ind. 488; Bumb v. Gard, 107 Ind. 575; Freeman Judgments, sec. 156.
The estoppel of a judgment is only presumptively conclusive where it appears that the suit and the issues were of such a character that the judgment could not have been Pearcy v. The Michigan Mutual Life Insurance Company.
rendered without deciding the particular matter again brought in question. Packet Co. v. Sickles, 5 Wal. 580.
Doubtless, issues might have been so framed in the suit by McBurnie as to have involved his right to recover either as guardian or in his individual capacity. In the absence of averments showing that his individual rights were so involved and determined, no such presumption would be indulged.
The demurrer to the answer was, therefore, improperly overruled. That the court below still more certainly erred in holding the reply insufficient,follows necessarily'from what has preceded. The reply set up affirmatively that the previous action involved only the rights of McBurnie, as guardian, and not his individual rights.
The judgment is reversed, with costs.
Filed May 19, 1887.
Peakcy V. The Michigan Mutual Life Insurance
Juror.—Examination of, on Voir Dire.—Misconduct.—Duty of Juror.—Practice. —In the examination of a juror upon his voir dire, if the general question asked fairly arouses his attention and directs it to the information desired, it is enough without specific questions covering minute phases of the subject, and it is the duty of the juror to make full and truthful answers, neither falsely stating any fact nor concealing any. material matter within the general scope of the question, and any violation of. this rule is such misconduct as is prejudicial to the party.
Same.—New Trial.—Insurance.—In an action against a life insurance company to recover upon a policy of insurance, where a juror, in response to a question asked in the examination of the jury as to whether he held a policy of insurance issued by the defendant, answered in the negative, the truth being that he had taken out such a policy on his life for the benefit of his wife, the plaintiff having no knowledge of the fact, he is guilty by reason of such concealment of such misconduct Pearcy ti. The Michigan Mutual Life Insurance Company.
as entitles the plaintiff to a new trial, notwithstanding his affidavit and those of his fellow-jurors, that in arriving at their verdict they were guided solely by the law and evidence.
From the Jasper Circuit Court.
E. P. Hammond and W. T. McNeil, for appellant.
W. 8. Hartman aDd W. H. Hamelle, for appellee.
Elliott, C. J.—The appellant's complaint is based on a policy of insurance issued by the appellee on the life of John Pearcy, the husband of the appellant.
The appellant asks a new trial for the reason, among others, that Ezra Bowman, one of the members of the jury, was incompetent, and because he was guilty of misconduct. In the affidavits filed by the appellant it is stated that each of the jurors was asked "whether he or any of his family held any life insurance policy issued by the defendant," and that each of the jurors answered that neither he nor any of his family held a policy. The affidavits filed by the appellee state that the question asked each of the jurors was: "Do any of you hold a policy of life insurance issued by the defendant, the Michigan Mutual Life Insurance Company?" and that the jurors were not asked: "Do you, or any member of your family, hold such a policy." It was further shown that Ezra Bowman had taken out a policy on his life for the benefit of his wife, that the policy was in force at the time of the trial, and that the fact that such a policy was issued was unknown to the plaintiff and her attorneys until after the trial. In the affidavit filed by Bowman he states that the question asked was: "Do you hold a policy of life insurance issued • by the Michigan Mutual Insurance Company?" but he does not deny that he had taken out a policy for the benefit of his wife. He and the other jurors swear, that in rendering their verdict, they were influenced solely by the law and the evidence.
It is of high importance to a litigant that the triers of his cause should be impartial and disinterested men, and the Pearcy v. The Michigan Mutual Life Insurance Company.
law makes careful provision for securing him this right. In speaking of this right the Court of Appeals of New York said: "The object of the law is to procure impartial, unbiased persons for jurors. They must be omni exceptione majores. They must have no interest in the subject-matter of the litigation." Diveny v. City of Elmira, 51 N. Y. 506. The Supreme Court of Nebraska declared a like doctrine in Ensign v. Harney, 15 Neb. 330 (48 Am. R. 344), where it was said: "Unless fair-minded, unbiased jurors can be selected, a trial becomes a mere farce, dependent not upon the merits of the case, but upon extraneous circumstances, such as the bias, prejudice, or interest of the jury. To determine the competency of a juror, an oath is administered to him and he is required to answer all questions touching his qualifications as a juror, not generally, but in that particular case. Great latitude is allowed in such an examination, and if it appears probable that the juror is not indifferent between the parties, he is excluded."
Other courts have asserted a similar doctrine; thus, in Bradbury v. Cony, 62 Maine, 223 (16 Am. R. 449), the court said: "In the trial of a cause, the appearance of evil should be as much avoided as evil itself. It is important that jurymen should be devoid of prejudice. It is hardly less so, that they should be free from the suspicions of prejudice."
So, in Melson v. Dickson, 63 Ga. 682 (36 Am. R. 128), it was said: "A big part of the battle is the selection of the jury, and an impartial jury is the corner-stone of the fairness of trial by jury."
The principle is so plain and just that it needs little more than a bare statement, and we refrain from further reference to authorities, although they are very abundant.
The examination of a juror on his voir dire has a two-fold purpose, namely, to ascertain whether a cause for challenge exists, and to ascertain whether it is wise and expedient to exercise the right of peremptory challenge given to parties by the law. It is often important that a party should know