Kwaiser v. Peters , 381 Mich. 73 ( 1968 )

381 Mich. 73 (1968) 158 N.W.2d 877

KWAISER
v.
PETERS.

Calendar No 13, Docket No. 51,743.

Supreme Court of Michigan.

Decided June 10, 1968.

Joseph J. Trogan, for plaintiff.

Stanton, Davidson & Carl, for defendant.

SOURIS, J. (for reversal and remand).

We granted leave to appeal for the limited purpose of determining whether the trial court erred in denying plaintiff's motion for new trial based upon allegations that a juror improperly associated with defendant and his counsel immediately after verdict favorable to defendant and that the same juror falsely answered his personal history questionnaire required by GCR 1963, 510. 379 Mich. 765. The Court of Appeals affirmed the trial court. 6 Mich. App. 153.

At an evidentiary hearing on plaintiff's motion for new trial, witnesses testified that within about an hour after return of the jury's verdict, the defendant tavern owner and one of the jurors entered the defendant's tavern, where they were joined soon thereafter by defendant's trial counsel and several members of counsel's law firm. At least some of the group, including the juror, were served beverages. None of the witnesses heard any of the conversation of the group of which the juror was a part.

The juror, the defendant, and the defendant's lawyers were not called by plaintiff to testify at the hearing on his motion, nor did they testify voluntarily. No other proofs were offered from which it could be found that the juror was known by the defendant or his attorneys before the trial or that they had communicated about the case privately before or during the trial. In short, this record is barren of any evidence that the plaintiff was prejudiced by the conduct of defendant, his attorneys, and the juror. The question becomes whether, absent a showing of prejudice, a new trial should have been granted because defendant and his attorneys fraternized with a juror immediately after a verdict was rendered favorable to defendant.

Just recently, in People v. Schram (1966), 378 Mich. 145, where the assistant prosecutor, during the trial of a criminal case, conversed with two jurors, a majority of this Court refused relief to the defendant absent a showing of prejudice to him. Other criminal cases were cited by our majority in Schram in support of its conclusion.^[1] If prejudice must be shown affirmatively, even in a criminal case and even when the alleged misconduct occurred during trial, no less is required in a civil case in which the alleged misconduct occurred after verdict. Indeed, in Hoskin-Morainville Paper Co. v. Bates Valve Bag Corp. (1934), 268 Mich. 443, this Court, unanimously, said so. A majority of this Court is not prepared to overrule Hoskin and Schram, and the other criminal cases cited in Schram. Accordingly, plaintiff's appeal on this ground must fail.

At the hearing on the plaintiff's motion for new trial, evidence was introduced to support plaintiff's claim that the same juror answered the juror personal history questionnaire, required by GCR 1963, 510, untruthfully in several respects. For example, he wrote on the questionnaire that he never had been convicted of a crime or misdemeanor other than for a nonmoving traffic violation. However, plaintiff's evidence showed that the juror had been convicted for moving traffic violations at least nine times from 1953 through 1963.^[2] Again, with reference to this aspect of the inquiry before the trial court, the juror was not called to testify by either party. On this record, therefore, and for the purpose of this decision only, we must conclude that the juror perjured himself in answering as he did his juror's questionnaire.

We have held that a party is entitled to truthful answers from a prospective juror during his voir dire examination. Wood v. Henley (1941), 296 Mich. 491, 497, and In re Petition of City of Detroit to Condemn Lands for Sewage Disposal Plant (1937), 280 Mich. 708, 716. In Wood, supra, a juror failed to disclose an indebtedness to the plaintiffs. When plaintiffs discovered this fact, during trial, their motion for mistrial based thereon was denied on the ground that plaintiffs had every opportunity to know the facts before trial commenced and, in any event, mere indebtedness to a party, it was said, does not disqualify a juror. Wood, however, does acknowledge the general proposition that litigants are entitled to truthful answers on voir dire. No reason has been suggested to us for reaching a contrary conclusion with reference to the juror's questionnaire required by our court rules only since January 1, 1963.

In this case, unlike Wood, supra, the juror's false answer was not such that either litigant could have known the facts except fortuitously. Furthermore, had the question been answered truthfully, it is much more likely than not that further inquiry would have been made by either counsel or by both at the voir dire examination. As has been said before, a litigant's right to trial before an impartial jury (Const 1963, art 1, § 14) requires that he be given an opportunity to obtain the information necessary to challenge prospective jurors for cause or peremptorily. Bunda v. Hardwick (1965), 376 Mich. 640 (dissenting opinion).

A false answer on a juror's questionnaire, such as was given here, diverts counsel's inquiry on voir dire and thereby precludes his effective exercise of his client's right to challenge the juror. If we are to insist upon counsel's use of the questionnaire to facilitate and expedite voir dire examinations (see Fosness v. Panagos [1966], 376 Mich. 485), we must be prepared to assure counsel that the questionnaires are reliable in every material respect and, if they are not, we should be prepared to order a new trial as well as to cite the errant juror for contempt of court. The trial court, as far as this record shows, did neither in this case.

I would reverse and remand for new trial. Plaintiff should be allowed to thx his costs.

BLACK, T.M. KAVANAGH, and O'HARA, JJ., concurred with SOURIS, J.

KELLY, J. (for affirmance).

I do not agree with Justice SOURIS' reversal and remand for new trial. I vote to affirm.

Juror Ruffus Thomas' answers on the form entitled "Juror Personal History Questionnaire" disclosed that he had been a resident of Saginaw county for 18 years; that he was 43 years old, married, and lived at home with his 7 children between the ages of 11 and 4; that he was employed at the Saginaw Malleable Iron Works as a "chiper"; that he had previously been employed as a barber; that he only had a seventh-grade education; that he owned a car insured with "Fenix Insurance Co."; that he had been in an accident and that his wife had also been in an accident; that he had never served as a juror before filling out the questionnaire.

During the course of the trial, juror Ruffus Thomas asked the court to be excused from jury duty because of his sister's death and his father's involvement in a serious automobile accident. A conference with the attorneys was held in the judge's chambers, and the court suggested that juror Thomas be released from further duty and the case be allowed to proceed to a verdict by 10 of 11 jurors. Defendant's counsel agreed, but plaintiff's counsel would not, and insisted that Thomas remain on the jury. The court thereupon adjourned the trial to allow juror Thomas to make a trip to Tennessee.

This was an action against Charles B. Peters, doing business as Peter's Bar, under the civil damages provision of the so-called "dramshop act."^[1] The sole question for jury determination was whether or not the defendant, Charles B. Peters, or his agents, servants, or employees, served alcoholic beverages to one Harvey Krause so as to cause or contribute to his intoxication.

The July 13, 1965, entry in the "Docket Entries" in this case is as follows:

"Verdict of jury (4:10 p.m.). No cause for action. Jury was polled, 11 jurors affirming and 1 juror dissenting. Jury excused from further deliberations in this cause. Motion by plaintiff for 20-day stay of execution granted by the court."

No proof has been submitted to this Court as to how juror Ruffus Thomas voted. Conceding that he voted against plaintiff's claim, the record shows that there still would be 10 jurors voting "No cause of action," in addition to Thomas. And 10 jurors agreeing upon a verdict is sufficient to sustain the verdict.^[2]

We quote from the decision of the Court of Appeals affirming the judgment, 6 Mich. App. 153, 161, 162:

"Plaintiff does not argue that he would have challenged the juror in question had the erroneous responses been revealed prior to trial.

"It is interesting to note that the juror was limited to a seventh grade education and that he was not called to explain the discrepancies in the questionnaire. In answering the questionnaire he stated that he had insurance and listed the company as ``Fenix Insurance Company.' The problem remains: Did the juror misspell the company name or, as plaintiff implies, was he uninsured? Plaintiff has neglected to inform us and evidently has not attempted to ascertain this information. The juror admitted he had been involved in an automobile accident and that his wife had been involved in an accident. Surely these are pertinent answers calling for additional exploration by counsel. However, counsel did not pursue this leading information. It can also be observed that the juror originally answered question 43 on the questionnaire, which was: ``Have you ever been convicted of a crime or misdemeanor (other than for a nonmoving traffic violation)?' with a ``Yes' answer. This was erased and answered, ``No.'

"There may be an explanation for these discrepancies, but evidently counsel was not interested in an explanation but only in creating error. Plaintiff has not convinced this Court that he was unduly prejudiced by juror Thomas' answers to the jury questionnaire."

Nothing in this record even suggests that juror Ruffus Thomas' answers to the questionnaire influenced the members of the jury in rendering a verdict, and there is a total absence of proof that those faulty answers resulted in a miscarriage of justice.

We have never in the past and should not now hold that proof that one juror gave inaccurate or untrue answers on the questionnaire nullifies a jury verdict and calls for a new trial.

Affirmed. Costs to appellee.

DETHMERS, C.J., and T.E. BRENNAN, J., concurred with KELLY, J.

ADAMS, J. (for affirmance).

I agree with Justice SOURIS that the courts should see to it that the questionnaires answered by jurors are reliable and truthful in every material respect. A juror who has given untruthful answers should be cited for contempt and duly punished if found guilty. On the other hand, the parties to a lawsuit ought not to be subjected to a new trial unless the false answers are shown to be such that counsel was misled and that the result might have been affected. In this case I agree with Justice KELLY that there is "a total absence of proof that those faulty answers resulted in a miscarriage of justice." I, therefore, vote to affirm the Court of Appeals, with costs to appellee.

T.E. BRENNAN, J., concurred with ADAMS, J.

NOTES

[1] People v. Kangas (1962), 366 Mich. 201; People v. Nick (1960), 360 Mich. 219; People v. Pizzino (1945), 313 Mich. 97, and People v. Whittemore (1925), 230 Mich. 435.

[2] Other evidence tends to support plaintiff's claims that the juror answered other questions falsely, but we need not advert to these other claims, considering that they are cumulative and that the evidence supporting them is not as certain as is the evidence of the juror's moving traffic convictions.

[1] CLS 1961, § 436.22 (Stat Ann 1968 Cum Supp § 18.993).

[2] Const 1963, art 1, § 14: "The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law. In all civil cases tried by 12 jurors a verdict shall be received when 10 jurors agree."

PA 1963 (2d Ex Sess), No 17, added section 1238 to the revised judicature act, as follows: "In all civil cases tried after January 1, 1964 by 12 jurors, a verdict shall be received when 10 jurors agree." (MCLA § 600.1238 [Stat Ann 1968 Cum Supp § 27A.1238]).