WEICK, Circuit Judge.
The action was originally brought in the Common Pleas Court of Lucas County, Ohio, to recover damages for personal injuries sustained by the decedent, Frank Eisenhauer, and for his wrongful death arising out of an accident occurring in the Toledo Terminal Yards of Norwalk Truck Lines, Inc. (Norwalk) when he was struck by a tractor owned by P and P Transport, Inc. (P and P) and driven by its employee Burger. Eisenhauer was an employee
The case was removed to the District Court because of diversity of citizenship. Ohio law governs the substantive issues of the case.
After a four-day trial on issues of negligence, contributory negligence and damage, the case was submitted to the jury which returned a verdict in favor of both defendants upon which judgment was entered. Plaintiff has appealed therefrom. We affirm.
Appellant has presented twelve (12) alleged errors not all of which require discussion. She contends that the court erred in limiting the scope of her counsel's interrogation of prospective jurors on voir dire examination "relative to stock ownership into insurance interest".
The record discloses the following questions were propounded by counsel for Plaintiff to prospective juror Alleman:
The record does not disclose what transpired at the bench conference. Plaintiff's counsel later propounded the following questions addressed to the entire panel:
It will be noted that no question was asked as to stock ownership of the prospective jurors in Norwalk, in P and P or in any other transport company, nor was any question asked the jurors as to their ownership of stock in a casualty insurance company. The record does not support appellant's contention that the court refused to allow interrogation with respect to casualty insurance.
In Ohio, such questions with respect to stock ownership in transport companies would have been entirely proper. It would also have been proper to inquire as to stock ownership in a casualty insurance company provided that it was done in good faith. Dowd-Feder, Inc. v. Truesdell, 130 Ohio St. 530, 200 N.E. 762 (1936).
The scope of questions permitted to be asked on voir dire examination is generally a matter addressed to the sound discretion of the court. Socony Mobile Oil Co. v. Taylor, 388 F.2d 586 (5th Cir. 1967); Langley v. Turner's Express, Inc., 375 F.2d 296 (4th Cir. 1967); Kiernan v. Van Schaik, 347 F.2d 775 (3rd Cir. 1965).
We find no abuse of discretion in the present case.
It is next contended that the court erred in submitting the issue of contributory negligence to the jury for the reason that there was no evidence to support it. Bush v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851 (1946).
In our opinion, there was supporting evidence.
At the time of the accident Eisenhauer was walking through the terminal yard. He was struck by the tractor which was backing up in a curved line, and he was pinned between the two left rear tandem wheels. There was some question whether the tractor had started to move forward. It was noon and traffic was heavy. Eisenhauer was walking between parked cars some of which were backing up in order to leave the area. He was an experienced truck driver and was aware of the inherent dangers of the terminal yard. Whether he conducted himself as a reasonable man would have under the same or similar circumstances was a question of fact for the jury to determine. The issue of contributory negligence was pleaded by the defendants. Appellant never objected to appellee's closing arguments in regard to contributory negligence, nor did she object to the court's instruction on the issue. The District Court did not err in submitting the issue to the jury.
The Agency Issue
In the District Court, the defendants moved for summary judgment on the ground that Burger was the agent and servant of Norwalk rather than of P and P, and therefore plaintiff's claim was limited to benefits provided by the Ohio Workmen's Compensation statutes which barred suit against a fellow servant. The tractor had been leased by P and P to Norwalk under a lease which required P and P to furnish the driver, carry bob-tail insurance and maintain the equipment in good repair. The District Judge denied the motion on the ground that at the time of the accident Burger was performing duties for P and P rather than for Norwalk. Wilcox v. Transamerica Freight Lines, Inc., 371 F.2d 403 (6th Cir. 1967), cert. denied, 387 U.S. 931, 87 S.Ct. 2053, 18 L.Ed.2d 992.
Appellant contends that, in view of this adjudication, the court should not
No objection was made by plaintiff to the interrogation of Poplin by the court or to much of the evidence relating to agency. In any event, we do not see how it could be prejudicial to plaintiff because the court ruled as a matter of law that Burger was the agent of P and P and did not submit the issue of agency to the jury. Furthermore, the jury found by its verdict that Burger was not negligent.
Misconduct of Counsel
Appellant's final contention is that there was continuous reference made during the trial to appellee's size in order to elicit sympathy from the jury as to appellee's ability to respond in damages. It is argued that questioning and comments by appellee's attorney were designed to indicate to the jury that P and P Transport, Inc. was a small and impoverished concern owned by an individual trucker and his family. The comments which are alleged to be prejudicial were made during opening and closing argument and during presentation of part of appellee's evidence.
Evidence as to the poverty or wealth of a party to an action is inadmissible in a negligence action. Hudock v. Youngstown Municipal Ry. Co., 164 Ohio St. 493, 132 N.E.2d 108 (1956); Book v. Erskine & Sons, Inc., 154 Ohio St. 391, 96 N.E.2d 289 (1951).
The opening statement of counel for appellee which is asserted to have prejudicial effect is the following:
Although the statement may have collaterally indicated that P and P was not a large trucking corporation with substantial assets, it was permissible as background material.
During the trial, Mr. Poplin, President of P and P, who with his wife and son owned all its shares of stock, testified on direct examination as to the
A more serious question is presented by the comments of appellee's counsel during his argument to the jury relative to P and P's financial situation. He said:
This argument was improper. The Court ordered the argument stricken and instructed the jury to disregard it and to draw no inferences on matters that have no bearing on the litigation. The response of appellant's counsel to the ruling of the Court did not ameliorate the situation.
In Golamb v. Layton, 154 Ohio St. 305, 95 N.E.2d 681 (1950), plaintiff's counsel during closing argument made reference to the financial responsibility of the defendant. The trial court sustained defendant's objection and cautioned the jury to disregard the remarks. The jury returned a verdict for the plaintiff. On appeal, the Supreme Court of Ohio affirmed on the ground that the trial judge was in a better position to determine whether he should have interfered because of the improper remarks and order a mistrial, and the statements of counsel were not so vicious and reprehensible as to call for reversal. In our case, the plaintiff did not move for a mistrial.
The trial of the case consumed four days. The statements by counsel for the appellees were not vicious. The District Court promptly ordered the argument stricken and gave a cautionary instruction to the jury. We cannot say in this case that the argument was so prejudicial as to require us to grant a new trial.
In view of our disposition of the case, it is not necessary for us to pass upon the propriety of the ruling by the District Court overruling defendant's motion for summary judgment.
"In the trial of a negligence action statements by counsel in argument to the jury, unsupported by evidence and relating to the poverty of one of the parties or the wealth of the other, and deliberate and persistent appeals to the sympathy of the jury, either directly or indirectly, are improper, as tending to induce either excessive or inadequate verdicts as a result of such appeal to the passion or prejudice of the jury."