Summary
In Petro v. Donner (1940), 137 Ohio St. 168, paragraph one of the syllabus states that the right to due process mandates the accused be tried before a fair and impartial jury on conclusions reached from evidence and argument in open court not by outside influence.
Summary of this case from State v. SmithOpinion
No. 28049
Decided July 3, 1940.
Jury — Litigants entitled to impartial, unprejudiced and unbiased jurors — Voir dire examination — Failure by prospective jurors to disclose facts — Granting new trial not abuse of discretion, when — Appeal — No final order.
1. Litigants are entitled to have their rights tried and determined by a jury of impartial, unprejudiced and unbiased men and women.
2. Where, on voir dire examination, the undisclosed or denied facts are such as are indicative of a mind which it is reasonable to believe is biased or prejudiced, or such as would disqualify the prospective juror in the first instance, the granting of a new trial under such circumstances is not an abuse of discretion.
CERTIFIED by the Court of Appeals of Cuyahoga county.
This is an action for damages for personal injuries sustained by plaintiff as a result of being struck by an automobile. The case was tried to a jury in the Court of Common Pleas of Cuyahoga county, which returned a verdict for the plaintiff in the sum of $500. Not satisfied with the amount of the verdict, plaintiff filed a motion for a new trial, claiming misconduct on the part of the jury.
When the court granted the motion for a new trial the following evidence was before it:
Juror Marie E. Robinson was a stenographer, working for the American Red Cross. On the voir dire examination, she was asked whether she had sustained any injuries in an accident upon which she had made a claim, or with respect to which a claim might have been made. She answered in the negative. After trial, her deposition was taken, in which she testified, in substance, that two or three years prior to the trial of this cause she had met with a minor accident, in which she received an injury to her "right big toe." Part of her testimony was as follows:
"Q. And then what happened? A. A Yellow cab came down and wanted to go through the light and cut the corner short; rather, it seemed as though it was jerking my foot off, and there was a lady with me and it hit her in the right leg.
"Q. Did it run over your foot at the time? A. Yes; it felt so.
"Q. Who was the lady with you? A. Mrs. Morrison.
"Q. Was she hurt badly? A. She was hurt more than I was; yes.
"Q. Was she laid up in the hospital? A. No, she was not laid up.
"Q. Did you later make claim on the Yellow Cab Company? A. Yes; she called for the Yellow cab and they had a man to call on me that same evening.
"Q. You went to the Yellow Cab Company's office? A. No, they just came out to me.
"Q. And did you give him a statement? A. Yes, sir.
"Q. And was there a settlement on the claim? A. It was settled for $10. * * *
"Q. Do you remember that the judge asked you about any accidents that you had had? A. Yes, sir, he did, but this was such a little thing that I had forgot about it until the case was all over and I began to think about it. I suppose if I had been laid up I would have remembered it all right."
On cross-examination she was asked:
"Q. And the fact that you had that minor accident made no difference to you in deciding this case at all? A. None whatever."
The answers of juror Herman C. Neitzel, on voir dire, were to the effect that neither he nor any member of his family had met with an accident. However, on deposition taken after the trial, he testified:
"Q. Mr. Neitzel, there is only one thing I want to ask you about. Did you or any of the members of your family have any accidents in recent years? A. Not that I know of; no, sir.
"Q. None at all? A. Not that I know of.
"Q. Perhaps I am mistaken, but did you have a son who was involved in an accident, in a workmen's compensation claim of some nature, Mr. Neitzel? A. Not that I know of. I have got a boy that's with me now, but I don't think he was in an accident. He got hurt over where he was working —
"Q. That's what I am interested in. When was that? A. Oh, I believe that was about a year, a year and a half, ago. That was when he was unloading — oh, I don't know what you call it — some machine that fell and hit his toe.
"Q. His foot was broken, wasn't it, Mr. Neitzel? A. Yes.
"Q. How long ago was that? A. Oh, it must be about a year. He has been over with me about a year or a year and a half. I didn't think that was anything that had any reference to an automobile accident. * * *
"Q. Do you know how much compensation he got for that? A. About twelve or thirteen dollars, something like that. I couldn't tell you offhand, and I don't want to say exactly, you see, because I don't know. * * *
"Q. You thought that accident wasn't important, didn't relate to an automobile accident, is that it? A. Oh, no.
"Q. That's the reason you didn't tell about it? A. That's the reason I didn't tell about it. It wasn't really an accident. The truck was pulled up there and they were just unloading it and it slipped, or something, but I didn't think nothing of that."
Juror Elmer J. Mlinar was interrogated on voir dire examination thus:
"Q. Have you done any work for any automobile liability insurance company that insures motorists? A. No.
"Q. And no member of your family has? A. No."
Upon his deposition being taken after trial, Mr. Mlinar testified as follows:
"Q. Mr. Mlinar, Mr. Pedley went out to see you, and tells me that you had an accident some years ago; did you? A. Well, we talked for quite a long while at my home. I believe we spent several hours there.
"Q. I am only concerned with the question, was there an accident you had some years ago? A. Yes.
"Q. Will you tell us about that? A. I was driving a truck for General Dry Batteries, and I don't recall the date exactly — I imagine it was around 1930 or 1931, I am not positive of that; it was in the winter months — and I had complained several times about the truck brakes not operating correctly, and, as a matter of fact, nothing was ever done about that, and I was driving up 105th street, I believe, at the time; was driving north, and a streetcar stopped above a knoll, and I was directly in the car tracks, and I slid into a car that was between me and the streetcar.
"Q. Was there anyone in the truck with you at the time of this accident? A. No, no one was with me.
"Q. How badly damaged was the automobile in front of you? A. Why, there was no apparent damage.
"Q. Was the person driving the automobile hurt, or did he claim to be hurt? A. No, he didn't claim to be hurt. He just asked me whose truck it was, and I said 'General Dry Battery's,' and he took the name and address down. That is all I ever heard about the case for the time being.
"Q. Then later was there some further investigation? A. About a year afterwards, or a year and a half afterwards, a gentleman came over to the house and asked me about the case.
"Mr. Marshall: And when you speak of case, you mean the accident?
"The Witness: Yes, I mean the accident. He said he was an insurance man, and I told him just what I am telling you now, as far as I can remember, about the brakes, and so forth, and after he walked away I never heard anything about it afterwards.
"Q. You never went to court at all? A. Never.
"Q. Was that the insurance company for which you did some work? A. No, it wasn't insurance; I never worked for no insurance company.
"Q. Were you at one time with the Pinkerton Detective Agency? A. Yes, sir.
"Q. How many years was that, Mr. Mlinar? A. That was two or three years.
"Q. Which years would that be, about? A. 1933 or 1934.
"Q. Was that here in Cleveland? A. That was in Cleveland.
"Q. And, in the course of your work for Pinkerton's, did you sometimes do work adjusting — investigating and adjusting — personal injury accidents? A. Sometimes, yes.
"Q. What insurance company was that for? A. I don't recall the name.
"Mr. Marshall: He said Pinkerton's.
"Q. I know, but what was the relationship between you, as a Pinkerton operative, and the insurance company, at that time?
"Mr. Marshall: Objection.
"A. Why, you mean what my duties were?
"Q. Yes. A. Just go out to see the proper person who was hurt, and ask a few questions as to where they were hurt.
"Q. Find out how it happened? A. That is all.
"Q. And you do not recall what particular — was there one insurance company that you did most of that for?
"Mr. Marshall: I object to that, he having stated he worked for Pinkerton.
"A. Why, there was none in particular that I was working steady for, no.
"Q. How long was that true, that you did investigating for and on behalf of insurance companies?
"Mr. Marshall: Objection.
"A. Well, I wouldn't know, Mr. Harrison, because of the fact that we were not always on those particular cases.
"Q. Put it this way: You worked for Pinkerton, I think you said, a couple of years? A. That is right.
"Q. And, during that time, how many cases did you investigate for insurance companies, would you say, personal injury cases?
"Mr. Marshall: Objection.
"A. How many cases for personal injury? Gosh, I don't know."
The Court of Appeals of Cuyahoga county, by a divided court, dismissed an appeal to it on the ground that the order appealed from was not a final order.
Upon motion of the defendant, appellant herein, the Court of Appeals certified the cause to this court on the ground of conflict with the decision of the Court of Appeals of Knox county, Ohio, rendered November 1, 1939, in the case of Steiner v. Custer, an opinion on the application to certify the record appearing in 63 Ohio App. 440.
Messrs. Harrison Marshman, for appellee.
Messrs. McKeehan, Merrick, Arter Stewart, for appellant.
The question here presented is whether, in granting the plaintiff herein a new trial, the court abused its discretion.
The granting of a motion for a new trial is not a final order and, therefore, not subject to review, except in cases where it clearly appears from the record that the trial court has abused its discretion in so doing. Hoffman v. Knollman, 135 Ohio St. 170, 20 N.E.2d 221, and cases there cited.
It is basic that litigants are entitled to have their rights tried and determined by a jury of impartial, unprejudiced and unbiased men and women. To enable litigants to test the qualifications of prospective jurors, the law affords them the right to conduct voir dire examinations.
"The purpose of the examination of a prospective juror upon his voir dire is to determine whether he has both the statutory qualifications of a juror and is free from bias or prejudice for or against either litigant." Paragraph one of the syllabus of Dowd-Feder, Inc., v. Truesdell, 130 Ohio St. 530, 200 N.E. 762.
To make voir dire examinations serve the purpose intended, it is essential that the prospective juror examined should search his memory and give frank and truthful answers to the questions propounded. Where, on voir dire examination, the undisclosed or denied facts are such as to be indicative of a mind which it is reasonable to believe is biased or prejudiced, or such as would disqualify the prospective juror in the first instance, the granting of a new trial under such circumstances is not an abuse of discretion.
The trial court, in granting the motion for a new trial, made the following entry: "Motion for new trial is granted on the sole ground that two jurors did not fully disclose regarding former accidents."
There were three jurors who did not fully disclose former accidents, and since the depositions of all three and the facts surrounding their fitness to serve as jurors were before the court, and since the trial court did not mention which two he referred to in the journal entry, we may assume that juror Elmer J. Mlinar was one of the two jurors considered.
Juror Marie E. Robinson had sustained minor injuries about two or three years prior to the trial of this case and had collected $10 in settlement thereof. It is altogether reasonable to assume that she had completely forgotten the occurrence, as she testified.
The fact that a juror recalls trifling incidents after trial which he had completely forgotten during the voir dire examination, does not necessarily show that the juror was disqualified. Drury v. Franke, 247 Ky. 758, at 795, 57 S.W.2d 969, 88 A. L. R., 917, at 940.
With respect to juror Herman C. Neitzel, the injury to his son was not sustained in an automobile accident. It is therefore reasonable to assume that in answering the interrogations of plaintiff's counsel, the juror was honestly mistaken in the scope of counsel's inquiry and assumed that it was directed to automobile accidents.
With respect to juror Elmer J. Mlinar, the accident which he sustained was minor, with no resultant damage, and it is very likely that he had forgotten it. However, when he was asked: "Have you done any work for any automobile liability insurance company that insures motorists?" he answered: "No." Yet, on deposition, he admitted that he had worked for the Pinkerton Detective Agency, and, in connection with the duties of his employment, had been engaged in "adjusting — investigating and adjusting — personal injury accidents." It is highly improbable that this juror had forgotten having been thus employed. From his testimony on deposition, we are of the opinion that he had intentionally withheld this information, to the prejudice of the plaintiff. Had the juror been frank and disclosed on voir dire examination the facts which he disclosed on deposition, the plaintiff would have had an opportunity to exercise his right of peremptory challenge. Not having made such disclosure, plaintiff lost a valuable right. See Mathisen v. Norton, 18 Wn. 240, 60 P.2d 1.
In view of all the above, we are of the opinion that the trial court did not abuse its discretion in granting a new trial to the plaintiff. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS and HART, JJ., concur.
MATTHIAS, J., concurs in the judgment.