Citizens Commercial & Savings Bank v. Engberg , 15 Mich. App. 438 ( 1968 )

15 Mich. App. 438 (1968) 166 N.W.2d 661

CITIZENS COMMERCIAL & SAVINGS BANK
v.
ENGBERG

Docket No. 4,408.

Michigan Court of Appeals.

Decided December 31, 1968.

Ellis J. Bowler and Joseph R. Joseph, for plaintiff.

Gault, Davison & Bowers, for defendant.

T.G. KAVANAGH, P.J.

This suit arose out of an automobile accident involving plaintiff's ward, Ruth Hazel Moulton, and defendant. It was sometime after 10 of the 12 jurors returned a verdict of no cause for action that plaintiff learned of certain misrepresentations made by one of the 10 jurors on his written voir dire questionnaire. Plaintiff's motion for a new trial on the grounds that, because of these false answers, this juror was not qualified or competent and therefore the jury was an improperly constituted tribunal, was denied. This appeal ensues.

Upon plaintiff's discovery of inaccurate statements on the jury questionnaire a hearing was held and the juror brought before the court for questioning, by the court and both parties, relative to his qualifications. The court concluded that the juror did not answer the questions with accuracy,^[1] but stated:

"In the court's opinion, plaintiffs failed to show that any of the charges brought against the juror, even if true, would show that he had any preconceived opinions or prejudices or such other interests, limitations or knowledge as would impair his capacity to render a fair and impartial verdict, as was the plaintiffs' burden. Lee v. Misfeldt, 1 Mich. App. 675. Although the juror was available to testify, and did testify, plaintiffs only questions concerned the truth or falsity of the answers to the questionnaire and on the voir dire."

There is no question that a litigant is entitled to a truthful answer from a prospective juror during his voir dire examination. See Wood v. Henley (1941), 296 Mich. 491. Counsel has a right to rely on the truthfulness of a jury questionnaire because it is designed "to provide a basis for intelligent challenging." 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 456. However, upon discovery of a juror's false statements after a trial and verdict, a moving party must present to the court something more than the mere fact of the falsity of the answers. There must either be a showing of actual prejudice (see People v. Schram [1966], 378 Mich. 145) or it must be established to the satisfaction of the trial court that the moving party would have successfully challenged for cause^[2] or otherwise dismissed the juror in question had the truth been revealed prior to trial. See Kwaiser v. Peters (1967), 6 Mich. App. 153, 381 Mich. 73.

"A person sitting on a jury panel is presumed to be qualified and competent to serve, and the burden is on the challenging party to make out a prima facie case to the contrary." Lee v. Misfeldt (1965), 1 Mich. App. 675, 679.

Plaintiff has presented no proof of actual prejudice on the part of this juror nor has it been established that this juror was unqualified thereby rendering the jury an improperly constituted tribunal. Proof alone of a false answer on the questionnaire is not a sufficient showing of prejudice.

The decision of the lower court in these matters is not made as a matter of law but rather is decided on the facts. See Clemmons v. Super Food Services, Inc. (1966), 3 Mich. App. 377. The lower court in this case had the opportunity to question this juror and determine his credibility. Absent a showing of actual prejudice or proof that a challenge for cause would properly have been successful, or proof of circumstances that would indicate the moving party would have been more likely than not to have excused the juror on a peremptory challenge, it cannot be said that the trial court abused its discretion in refusing to grant a new trial.

Affirmed. Costs to appellee.

QUINN and MILLER, JJ., concurred.

NOTES

[1] On the voir dire questionnaire the juror stated that no member of his family had ever been in an accident, that he had never been arrested or charged with a crime and that he had never been a party to any suit either civil or criminal.

At the hearing, the juror's testimony indicated that almost 8 years prior to this trial, his estranged wife and children were involved in a serious accident, outside this state, the details of which were denied him, that he was divorced in an uncontested action, that he had been picked up by the friend of the court for failure to pay support and that he was adjudicated bankrupt.

[2] "In order to discharge a juror for cause, it is incumbent upon the challenger to show the court that the juror has preconceived opinions or prejudices, or such other interests, limitations or knowledge as would impair his capacity to render a fair and impartial verdict." Lee v. Misfeldt (1965), 1 Mich. App. 675; see GCR 1963, 511.4.