Opinion
No. 3362.
Decided May 4, 1943.
A finding that certain jurors, on being interrogated by the trial court, had knowledge of certain facts affecting their qualification cannot be based solely on their appearance and manner of testifying, unless they have been questioned as to their knowledge thereof. A juror may have a minute and remote interest in the outcome of a trial and yet be found indifferent. Hence a juror might be found to be indifferent though having knowledge that the liability insurance company who insured him also insured the defendant, where a verdict against the latter would be unlikely to increase future premiums of policy holders. A party moving to have a verdict set aside on the ground of a juror's disqualification must establish that he used due diligence to discover the juror's competency.
CASE, to recover for personal injuries sustained by the plaintiff on October 11, 1935, when he was struck by the defendant's automobile. Trial by jury and verdict for the defendant. Transferred by Connor, J., on the defendant's exceptions to an order of the court (Burque, C. J.) granting the plaintiff's motion to set aside the verdict on the ground that two of the jurors were disqualified. The findings and rulings, so far as material, follow.
"Defendant was insured with the Farm Bureau Mutual Automobile Insurance Company, and so were . . . jurors Charles E. Morrill and Joseph S. N. Abbott . . . They both knew the defendant. Flagg, knew he was agent for the Farm Bureau Mutual Fire Insurance Company and sold fire insurance for it. As a matter of fact, Flagg sold fire insurance to juror Abbott, and had solicited juror Morrill for same.
"Both jurors were members of the Farm Bureau. They had met Flagg at times at meetings of the Bureau and elsewhere. Both these insurance companies are projects of the Farm Bureau, and although independent and separate companies or associations are controlled somewhat by the same persons, and have adjoining offices in the same building. The automobile company rates depend upon losses incurred, and although no increase in rates and no assessments have been made for some years past, both jurors knew they were subject to same. And the court is satisfied that both jurors knew Flagg was insured with the automobile company, at the time of the trial, and that the insurance company was defending the case. This conclusion is irresistible after seeing and hearing these men testify. It must then necessarily be found that they were disqualified as jurors, and consequently the verdict must be set aside, and a new trial ordered.
"It is unnecessary to pass on defendant's requests for findings and rulings . . .
"This is a plain case of passing upon the qualifications of jurors, and the court finds the two jurors mentioned were disqualified. Shulinsky v. Railroad, 83 N.H. 86 is sufficient authority for the conclusion reached here and for an order of new trial."
The defendant excepted to the refusal of the court to dismiss the plaintiff's motion. He also excepted to the specific findings as unwarranted by the evidence, to the rulings of law, to the refusal of the court to pass upon certain requests for findings and rulings, and to the order setting aside the verdict.
Murchie Murchie (Mr. Alexander Murchie orally), for the plaintiff.
Robert W. Upton and Laurence I. Duncan (Mr. Duncan orally), for the defendant.
Defendant's counsel question the sufficiency of the evidence to sustain the trial court's conclusion that both jurors knew that the defendant "was insured with the automobile company, at the time of the trial, and that the insurance company was defending the case." The jurors testified that they knew that the defendant solicited insurance for the Farm Bureau fire insurance company, and it could be found that they also knew that he had some connection with the automobile company; but they were not asked if they knew he was insured by the latter company or if they knew that that company was conducting the defense of the action. An affirmative finding that they had knowledge of these facts could not properly be based solely on their appearance and manner of testifying. Albee v. Osgood, 79 N.H. 89, 94.
But even if they possessed such knowledge, they were not necessarily disqualified. The evidence plainly indicates that the recovery of a verdict against the defendant would not, in any reasonable likelihood, have meant an increase in the premiums charged the policyholders of the automobile company or the levying of an assessment against them; and it is the rule in this jurisdiction that "a juror may have a minute and remote interest" in the outcome of the cause and yet "be found indifferent." State v. Sawtelle, 66 N.H. 488, 529; Opinion of the Justices, 75 N.H. 613, 618; P. L., c. 321, s. 31 (R. L., c. 375, s. 31).
In the case of Shulinsky v. Railroad, 83 N.H. 86, the defendant lost the right to challenge a juror because of "false information furnished under the court's authority." In such a situation a finding that the juror was indifferent could not render the verdict valid. The argument that a comparable situation here exists must be rejected. No inquiry concerning the jurors' interest in the Farm Bureau companies was made at the trial either by the court or by counsel, and if the jurors' silence could, as the plaintiff contends, be regarded as false information, there is no evidence that the plaintiff relied upon it. For aught that appears, the plaintiff may have known all the facts of which he now complains and waived his right to object.
There is no merit in the plaintiff's contention that the court's general finding that the jurors were disqualified includes the special finding that the plaintiff was diligent, no request for a special finding to the contrary having been made. In the first place, the court's reference to the Shulinsky case as sufficient authority for the conclusion reached would indicate that the general finding, so called, is not strictly a finding of fact but rather a ruling of law. In the second place, the defendant's motion to dismiss, made at the conclusion of the evidence, raised the question of the sufficiency of the evidence as to every essential element of the plaintiff's claim (Record v. Corporation, 89 N.H. 1, 7), and one of the essential requirements incumbent on the plaintiff was proof that he had used due diligence to discover the jurors' competency (Hazen v. Corporation, 89 N.H. 522, 523). In the Shulinsky case a finding of due diligence was properly made, but in the present case neither the plaintiff nor his counsel saw fit to testify, and there is a total dearth of evidence from which any exercise of diligence on their part could be inferred.
Exceptions sustained.
BURQUE, J., did not sit: the others concurred.