The opinion
DISSENTING OPINION
By NICHOLS, J.
I agree with the majority members of this court ir^ finding that the record fails to disclose prejudicial error in the respects set forth in the grounds of error designated as Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth in the petition in error.
I cannot concur in the reversal of the judgment of the Common Pleas Court for the error claimed in the first ground set. forth in the petition in error, to-wit:
“Misconduct on the part of counsel for plaintiff below in making certain inquiries of prospective jurors relating to liability insurance.”
An examination of the record discloses that counsel for plaintiff made the following inquiries of the prospective jurors on voir dire examination:
“Do any of you, as a sideline, solicit insurance, automobile liability insurance, for any insurance company? Have any of you ever worked as a solicitor for insurance, *421 or solicit insurance for! automobiles? Accidents, and so on. Do any of you own any stock in any automobile insurance company? Or do you have any relatives that are employed as agent, or solicitor, or in any capacity, for any insurance company?
MR. STEPHENS: Defendant objects and excepts to that line of questioning.”
There is nothing in the record showing any action by the court upon this objection, the record' next setting forth the opening statement of counsel for plaintiff. It is conceded that at the time of the trial such inquiries were proper. Pavilonis v Valentine, 120 Oh St, 154. This being so, there can be no ground for the claim that there was misconduct on the part of counsel or the court relative to the making of such inquiries or the failure of the court to act upon the objection thereto by counsel for defendant. There certainly was no duty of the trial court “to interpose and admonish the offending counsel, and to instruct the jury in regard thereto” as counsel could not “offend” in doing that which the established law of the state then sanctioned and approved. Herein is the clear distinction between the case at bar and the case of Hayes v Smith, 62 Oh St 161, (cited and quoted with approval in 124 Oh St 8), relied upon and quoted from „the majority opinion of this court. For like reason, the case of Thatcher v Pennsylvania-Ohio & Detroit Rd. Co., 33 Oh Ap, 242, is not in point.
The majority opinion of this court seems to be founded on the case of Vega, Admr. v Evans, 128 Oh St, 535.
The case at bar is, in my opinion, clearly distinguishable from the case of Vega, Admr. v Evans. In the first1 place, the defendant, Evans, in the case reported in 128 Oh St was an individual and in the instant case the defendant was a corporation engaged in the general sale and service of automobiles. In this day, and age there is no person who has sufficient qualifications to serve as a juror who does not know that in the vast majority of instances such automobile sales and service companies carry liability insurance and the inquiry of coun-. sel upon the voir dire informed the jury of nothing of which they were not already informed, and there could be no prejudice to the defendant below. And it might be observed on this point that it reasonably •appeared in this case that a liability insurance company was actively interested in the defense. It is stated in the opinion of the court in Vega, Admr. v Evans, Supra, at page 540, approving the dissenting opinion in Pavilonis v Valentine, 120 Oh St, 154, that if “it was patent to the jurors that an insurance company was an indemnitor and actively interested in the trial, then no prejudice could have resulted from questioning the jurors on their voir dire as to interest in such company.” On the other hand, if it were patent to the jury that an insurance company was actively interested in the trial, it would certainly have been prejudicial to- the plaintiff below if he be required to accept jurors without any opportunity to ascertain the interest, if any, of the prospective jurors in such liability insurance business. In the state of Ohio there is more than one liability insurance company in which a vast number of persons are interested as stockholders and salesmen, and where the policy holders are assessed to pay claims, making all such policy holders directly interested in keeping such companies from paying claims.
In my own county of Belmont I know this to be true, and in a long and extensive practice I have felt that I would be derelict in my obligation to my client if I did not make reasonable effort to ascertain the interest of the prospective jurors in such liability insurance company or association. It has been the universal practice1 to elicit such information by inquiries such as were made upon the voir dire in this case. In the case at bar I am well satisfied that substantial justice has been done, and I cannot subscribe to any finding in this case which would extend the stringent rule laid down in the 3rd syllabus of Vega, Admr. v Evans, supra, where the circumstances and facts of the case are clearly distinguishable. The case of Vega, Admr. v Evans, is further distinguished from the case at bar in that in the Vega case an objection was timely made to the inquiries propounded on the voir dire, the objection, was overruled by thei court, and an exception taken to the ruling of the court. Not so in the instant case. Here counsel for defendant made no objection to the questions involved when first propounded, but waited until the entire line of questioning had ended, at which time the record shows the following:
“Mr. Stephens: Defendant objects and excepts to that line of questioning.”
The record does not show that the court passed upon this objection, and the language used by counsel strongly intimates that the objection and exception were read into the record without calling the same to the attention of the court, It was the duly *422 of counsel for the defendant, timely, that is, immediately upon the beginning of the “line” of questions to interpose his objection to the court and insist upon a ruling by the court, and if the court should overrule the objection, to note his exception to such overruling. No challenge to the array of the jury was made. For all we know, if the court’s attention had been called timely to the questions claimed to be objectionable, the array might have been set aside and a new jury called and the expense involved in the further trial avoided. It will be kept in mind that “misconduct” of the court and counsel for plaintiff could not result from conduct expressly authorized and approved by the established law of the State.
In the opinion of the minority member of this court the holding in the case of Warder, B. & G. Co. v Jacobs, 58 Oh St, 81, establishes the correct rule applicable to the situation in the case at bar, from which is quoted:
“From the record before us it simply appears that these observations, were made by counsel for the plaintiff to the jury, and that counsel for the defendants then and there ‘objected and excepted.’ From this we readily infer that counsel ‘objected’ to the remarks of the opposing counsel, as he had an undoubted right to do. But to what did he ‘except?’ An exception is not to the act of a party but to that of a court in ruling on an objection. What the court did in this matter is not disclosed by the record.”
Reference to the General Code of Ohio is made:
“See 1159 GC. What an exception is: An exception is an objection taken to- a decision of the court upon a matter of law.”
“Sec 11560 GC. When to be taken, reduced to writing. The party objecting to the decision must except at the time it is made * s *.”
In consideration of the whole record, the minority member of this court could not certify that substantial justice has not been done in this case, or find that error prejudicial to- the rights of the defendant below has intervened, and it is the opinion of the minority member of this court that the judgment of the Common Pleas Court should be affirmed. . .