Zimmerman Ex Rel. Zimmerman v. Witte Transportation Co. ( 1977 )

TODD, Justice.

Patrice Zimmerman sustained personal injuries when she fell from her bicycle onto a public highway where she was struck by a truck owned by Witte Transportation Company. The jury found the driver to be free of negligence but awarded plaintiffs damages. Following a newspaper report that Patrice would not recover any damages for her injuries, two of the jurors approached the trial judge regarding this result. After interviewing the jurors off the record, the trial court denied plaintiffs’ motion for a Schwartz hearing. The court also denied a motion for a new trial or judgment notwithstanding the verdict. We affirm.

At the time of the accident, Patrice Zimmerman, then 7 years old, was riding a bicycle from her home to a nearby church to attend summer catechism classes. She was accompanied by her two older sisters, who were then 9 and 10 years old. The highway was a two-lane roadway with a blacktop surface, 24 feet 6 inches wide and divided by a painted centerline. On the east side of the road was a shoulder of crushed rock, pebbles, and dirt extending 4 to 5 feet from the blacktop, and a sloping grassy area extending another 4 to 5 feet. As Patrice and her sisters were riding single file on the right-hand edge of the road surface, with Patrice in the lead, they became aware of a truck overtaking them. They left the road surface to stop on the gravel shoulder. The two older girls stopped their bicycles about 3 to 4 feet from the road surface. Patrice, however, either lost her balance or turned the wheel of her bicycle toward the truck, fell toward the road surface, and was struck by the rear wheels of defendants’ truck. She was severely injured.

The case was submitted to the jury on special interrogatories. The jury awarded $100,000 in damages to Patrice and $10,-852.90 to her father. However, the jury determined that neither Patrice nor the truck driver was negligent.

After the jury had rendered its verdict, two jurors expressed their belief that in rendering the verdict they assumed Patrice would be entitled to recover damages. Each of these jurors approached the court the day after the trial and informed the court of their assumptions on the issue of damages. Counsel for plaintiffs were contacted by persons who had talked to the jurors and who indicated that the jurors had been confused by the instructions of the court, had misunderstood the effect of their verdict, and had been under the impression that their verdict would entitle plaintiffs to recover from defendants. Plaintiffs’ counsel presented the court with an affidavit setting forth the information he had received and requested a Schwartz hearing.¹ The trial court denied the request on the grounds that the situation did not constitute jury misconduct. The court had previously questioned the jurors in the absence of counsel and without making a record. The court told counsel it believed the jurors to be adamant in their opinion that the driver was not negligent.

The following issues are presented for consideration on appeal:

(1) Whether the trial court erred in denying plaintiffs’ request for a Schwartz hearing.

(2) Whether the defendant truck driver was negligent as a matter of law.

(3) Whether the trial court erred in its instructions to the jury.

The granting of a Schwartz hearing is generally a matter of discretion for the trial court. Its purpose is to avoid harassment of jurors and to provide a record on appeal in cases where, after the jury renders the verdict, the losing party becomes aware of facts which indicate the possibility of jury misconduct. At the first suspicion of misconduct, the attorney for the losing party should bring the matter to the attention of the trial court. If this procedure is not followed, the issue may not be raised for the first time in a motion for a new trial. Tupper v. Dirks, 292 Minn. 445, 193 N.W.2d 800 (1972). Neither an attorney nor his agent should initiate questioning of jurors concerning possible misconduct. Olberg v. Minneapolis Gas Co., 291 Minn. 334, 343, 191 N.W.2d 418, 424 (1971). It is not improper, however, for an attorney to question jurors who take the initiative by approaching or telephoning the attorney to report facts which they believe constitute misconduct. 291 Minn. 344, 191 N.W.2d 425. If the facts appear to warrant action, the trial court may summon the juror who alleges jury misconduct and permit, with proper safeguards, an examination to be conducted in the presence of counsel for all interested parties and the trial judge. By adhering to this procedure, a record can be preserved for presentation to this court on appeal if any doubt exists about the correctness of the trial court’s ruling. Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). Nothing should prevent the trial court from ordering a hearing based upon an oral assertion by counsel or hearsay affidavit. Moreover, trial courts should be liberal in granting such a hearing. Olberg v. Minneapolis Gas Co., 291 Minn. 334, 343, 191 N.W.2d 418, 424.

These procedures were not followed in the instant case by the trial court, and a record was not made in the presence of counsel concerning the statements of the jurors. However, the trial judge did make the following statement in his memorandum accompanying the order denying plaintiffs’ motions:

“It appears that at least two of the jurors thought that the verdict they agreed to would entitle plaintiffs to recover. Each of these jurors came to the Court the next day and so stated. Upon questioning, however, both were adamant that in their opinion the defendant’s driver was not negligent. By virtue of the foregoing plaintiffs now seek a hearing pursuant to Schwartz v. Minneapolis Suburban Bus Company [258 Minn. 329], 104 NW2d 301. It does not appear to the Court that that is a case where such a hearing would be appropriate. Schwartz (ibid) involved a case where there was alleged misconduct on the part of a juror. In that case the Supreme Court said there should be a hearing on that kind of question before the trial judge. In the case at bar, plaintiffs’ claim that a Schwartz hearing should be had because the jury was confused and misunderstood the effect of the verdict. That is not a ground for a Schwartz hearing.” Citing and quoting from Nebben v. Kosmalski, 307 Minn. 211, 239 N.W.2d 234 (1976), as controlling. (Italics supplied.)

Counsel for plaintiffs in his affidavit to support the request for a Schwartz hearing stated in part:

“Since that time the forewoman, and perhaps other jurors, have contacted the court and the county attorney on several occasions concerning their error; that the jurors have indicated that they thought the truck driver was negligent and would have found him so had they been aware this was necessary in order for the plaintiffs to recover." (Italics supplied.)

Obviously, it is desirable to put jurors’ statements concerning possible misconduct on the record and this should be done. However, in this case, the trial judge was unequivocal in his recollection of statements made to him by the jurors concerning their opinion that the truck driver was not negligent. This single fact distinguishes the present case from our decision in Ramfjord v. Sullivan, 301 Minn. 238, 222 N.W.2d 541 (1974), which involved a situation where, after the jury returned a verdict containing a clerical error, the trial court further instructed the jury without the presence of either attorney and without making a record and then ordered the jury to retire to correct the error. In disapproving of the trial court’s examination of jurors concerning possible misconduct, without the presence of the attorneys or without making an appropriate record of the proceedings, we stated (301 Minn. 252, 222 N.W.2d 550):

“While there is no indication whatever that the learned trial court in this case did not recite to counsel everything he recalled, the record does indicate that a busy trial judge can forget exactly what transpired. For as the trial court itself stated in this case:

‘“THE COURT: All right. Before we get off that point, my memory now is a little hazy as to just what took place. I think I discussed it with you, Mr. Mun-ger, the next day at some length. I don’t recall whether the jury came in for further instructions or whether they came in with their Answers. (Italics supplied.)’

“We therefore reiterate the language of the Booth case:

“ ‘ * * * The mischief lies in opening the door to a misconstruction and a faulty recollection of what the court actually said, leaving the record uncertain as to the scope of his remarks.’ [Booth v. Spindler, 261 Minn. 79, 87, 110 N.W.2d 889, 894 (1961).]”

In the case at hand, however, the trial judge was not confused, nor was his memory hazy, about exactly what the jurors had related to him on the issue of jury misconduct. In essence, the jurors were seeking to impeach their own verdict. This does not constitute clerical error which can be corrected through a Schwartz hearing. See, State v. Hoskins, 292 Minn. 111, 193 N.W.2d 802 (1972); Weber v. Stokely-Van Camp, Inc., 274 Minn. 482, 144 N.W.2d 540 (1966); Bauer v. Kummer, 244 Minn. 488, 70 N.W.2d 273 (1955). We thus hold that the trial court did not commit error in denying plaintiffs’ motion for a Schwartz hearing. Further, we have reviewed the record of these proceedings and find plaintiffs’ remaining allegations of error to be without merit.

Affirmed.

1 . This is the proper method of receiving and presenting information to the court with respect to a request for a Schwartz hearing.