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Banks v. Village Enterprises12/5/2000
s portion of voir dire.
KFC argues that reversible error occurred when counsel for Mr. & Mrs. Banks asked the approved "follow-up" question since the panel members who responded to the "insurance question" had said only that they were policyholders of the insurer, not that they were officers, agents, employees, or directors of the company. We disagree. First, the Point Relied On, quoted above, fails to sufficiently raise the issue of error in permitting a follow-up question to preserve it for appeal. Rule 84.04; Coleman, 969 S.W.2d at 274. Second, it is well-settled that the trial court is better suited than an appellate court to judge the effect that "insurance questions" have on a jury panel, Taylor, 950 S.W.2d at 321, and that "the decision of whether to grant a mistrial when such a situation arises is one that is left to the sound discretion of the trial court, and only where a manifest abuse of discretion occurs will the appellate court disturb this decision." Id. Here, the trial court specifically considered the claim that error occurred from asking the follow-up question, and determined that it did not.
Third, KFC does not point us to any case indicating that a single, approved follow-up question can result in prejudice, even when answered by policyholders rather than insurance company employees or officers. Our own research has found to the contrary. In Morris v. Duker, 414 S.W.2d 77 (Mo. 1967), our Supreme Court addressed the converse question: whether it was error to prohibit counsel from asking whether any members of the venire were policyholders of the insurer. The court held that it was not error to preclude such a question, but it further ruled that " f the inquiry had been allowed it would have been proper. McCollum, supra [185 S.W.2d 48 (Mo. App. 1944)] . The better practice would be to allow such an inquiry. If a venireman is a policyholder the plaintiff has a right to inquire whether in view of that fact he could try the case fairly. McCollum, supra. The refusal to permit inquiry . . . however, does not constitute an abuse of discretion requiring us to upset a verdict and judgment. . . ." Morris, 414 S.W.2d at 81. Following Morris, we find that the court below did not abuse its discretion in finding that no prejudice resulted from the fact that counsel asked the approved follow-up question of jurors who had responded that they were policyholders of one of the mentioned insurers.
KFC also argues that reversible error occurred because the Banks' counsel asked the insurance questions near the end of voir dire, thus emphasizing them and violating the requirement of Ivy that the insurance question not be either the first or last question asked in a series so as to avoid unduly highlighting it. Ivy, 878 S.W.2d at 445. Again, the Point Relied On does not state this point sufficiently to preserve it for review. Rule 84.04; Coleman, 969 S.W.2d at 274. In any event, the Banks did not, in fact, ask the insurance questions first or last in a series. And, while counsel did ask them quite near the end of his voir dire questions, KFC can point to no case holding that this was error. Moreover, the record shows that, when counsel for KFC raised this issue after counsel for the Banks had indicated that he had no more questions at that point and the court took a break, counsel for Mr. & Mrs. Banks offered to ask more questions before KFC began its questioning. KFC argued that this would not cure the error because the questions had already been emphasized by taking a break shortly after they were asked. The court considered the objection that only a few additional questions were asked before the break and ruled, "I don't know how much influence that has on a jury, but there were q
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