Schwarzbach v. Dunn

WATKINS, President Judge:

Both of these consolidated cases arise out of the same set of circumstances and come to us on appeal from the Court of Common Pleas of Elk County, Civil Division.

On March 27, 1971, Perry J. Dunn, operating the Jeep which was involved in the accident, invited three men friends to ride with him. Dunn and his passengers left the Borough of Ridgway at approximately 8:00 p. m., travelled to other towns in the area, and then finally stopped at a place one and one-half miles south of Ridgway where they remained for a period of approximately two hours. They then proceeded in a northerly direction toward Ridgway on Route 219.

As the Jeep reached the crest of a hill, Dunn, judging his speed to be about 40-45 miles per hour, decided to slow down and attempted to apply the brakes of the vehicle when he found that the brake pedal went to the floor of the Jeep with no braking effect. Dunn then decided to cross to the opposite side of the highway in order to scrape the Jeep along the steel guardrails on that side to slow the vehicle. Before the Jeep reached the beginning of the guardrails it left the highway, went over an embankment, and collided with trees and brush. One of the passengers in the vehicle, Gunnar B. Gaylor, was fatally injured as a result of the crash. Another, Fred Schwarzbach, was severely injured. The vehicle was damaged extensively. At the time of the incident the roadway was dry and no traffic was approaching from either direction. There were tire tracks leading across the highway and then along the east berm of the place it left the highway. The tire marks were 585 feet in length.

The Jeep had been purchased new by Dunn on March 24, 1971. It was titled in his wife’s name.

The case of Franz Schwarzbach v. Perry J. Dunn and Jim Boyle Chevrolet, Inc., the Jeep dealer, and Jeep Corporation is an action in trespass alleging negligence on the part of Dunn, the vehicle’s operator. Jim Boyle Chevrolet was later dismissed from this case by mutual agreement of the parties.

The case of Gaylor v. Jeep Corporation is an action in trespass alleging a defective product under § 402A of the Restatement of the Law of Torts.

In the Gaylor case the jury returned a verdict in favor of the plaintiff in the sum of $20,000.00. The court below awarded the plaintiff a new trial on the issue of damages only upon motion of the plaintiff.

In the Schwarzbach case the jury awarded a verdict in favor of the plaintiff in the sum of $600,000 against the Jeep Corporation only. Jeep Corporation is now appealing that case and also the order of the court below awarding a new trial to Gaylor limited to the question of damages only. The lower court had consolidated both cases and they were tried together.

At trial the plaintiffs’ position was that the Jeep was dangerously defective because dirt had entered into the brake fluid causing the brakes to fail and that this caused the subsequent crash. Jeep’s position was that the brakes were not defective and that the accident was caused by the operator’s intoxicated condition as a blood alcohol test administered to him three hours after the accident indicated a blood alcohol count of .12 and a pathologist would have testified that his alcohol content would have been .18 at the time of the accident using the formula that the alcohol level in one’s blood decreases at the rate of .02 per hour. The expert would then have testified that he was driving under the influence of intoxicating liquor. Jeep offered also to prove that in depositions taken of the operator he admitted making four stops with his friends that day and that he had drunk beer at all four stops. Jeep would then have attempted to show either contributory negligence or assumption of risk on the part of the decedent and Schwarzbach for riding with an intoxicated person. However, this proffered testimony never was received by the jury because the court below refused Jeep’s offer of proof after a pre-trial conference had been held. Jeep now claims that the court below erred when it denied its offer of such testimony.

Jeep also alleges error in that it was discovered after trial that the husband of a secretary in the law offices of Schwarzbach’s counsel had been a member of the jury and had been made foreman of the jury. Jeep claims that this person’s presence on the jury is grounds for a new trial as it constituted a denial of a fair and impartial jury. The trial court, after acknowledging its awareness of its right to examine the composition of the jury found nothing about the juror to disqualify him. In his brief appellee Schwarz-bach states that the wife of the juror Piccirillo had worked in the offices of his counsel on a part-time basis but goes on to say that she worked for a member of his firm unconnected with this case and that she had no contact with or knowledge of that matter. He also goes on to say that in Elk County there are a number of stenographers who, from time to time, perform services for whatever law offices have need of their services. However, he fails to state whether or not such was the relationship of this individual with the law firm in question.

The only question proposed of the prospective jurors during the voir dire conducted by Jeep’s counsel which touches on this matter was the following:

“Do any of you have any reason why you would not serve on this jury and freely pass upon the questions involved here and give a proper verdict based solely upon the evidence which you hear and not being influenced in any way by anything that you have heard about it or by reason of your knowledge of the parties or anything of that nature. What we are trying to do is get a jury that is impartial which I think any of you would desire if you were parties to a law suit, so, if you know of any reason which would prevent you from giving a just verdict solely on the evidence I wish that you would raise your hand? “(No one raised their hand.)”

No juror indicated an affirmative response to this question. The issue therefore is whether there was an affirmative duty on the juror in question to reveal his wife’s relationship with the office of the plaintiff’s attorney. We hold that there was.

It is fundamental that a litigant is entitled to a fair trial and that this includes the right to be tried by an impartial jury. Commonwealth v. Crow, 303 Pa. 91, 154 A. 283 (1931). However, the law recognizes that it would be unrealistic to expect jurors to be free from all prejudices and it expects merely a mind sufficiently conscious of its sworn responsibility and willing to attempt to reach decisions solely on the facts presented, assiduously avoiding influences of irrelevant factors. Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973). There are situations, nevertheless, when a court will presume prejudice on the part of one of the jurors in order to insure fairness. Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972). In Stewart, supra, a criminal case, the Supreme Court reversed defendant’s murder conviction because the father of the victim had been a member of the original jury panel although he did not hear the case and testified that he had not discussed the case with any of the jurors on the panel. In that case the court addressed itself to the “potentialities” for prejudice taking note of the fact that the victim’s father had been in close contact with other members of the jury panel, some of whom eventually heard the case, for a period to two and one-half days. The court considered the fact that a voir dire examination might have revealed and cured any prejudice which could have come about as a result of the association between the victim’s father and the jurors but dismissed this argument because the defendant’s counsel learned of this fact only after the jury was sworn and thus had no reason to question prospective jurors on voir dire about the situation. Likewise, in our case, Jeep's counsel learned of the possibly prejudicial situation only after the jury had been sworn and had rendered its verdict. And in our case the potential for prejudice was great in that it is quite possible that a secretary in a law office could influence her husband in deciding a matter in which her employer is counsel for one of the parties. The problem here is. that it was never factually established just what the secretary’s relationship was with the law office of Schwarzbach’s attorney. It is admitted in the brief of both parties that at one time Mrs. Piccirillo, whose husband served on the jury, was employed by the law offices of Schwarzbach’s attorney. It is implied by one of the parties that she was an occasional employee of many law offices in the area. However, this was never determined as factual. In fact her relationship with the law offices was never made clear anywhere. If she was a mere occasional employee or if a great deal of time had passed since she was so employed the potentialities of prejudice of her husband sitting on the jury would not be great enough to warrant a new trial. However, we do not have the answers to these questions and as the court did in Stewart, supra, we are inclined to tip the balance in favor of insuring a fair trial here. We should point out also that the relationship of the juror in this case may have caused Jeep’s counsel to exercise a peremptory challenge as to the juror if he had been appraised as to the relationship. Jeep’s counsel, however, learned of the relationship only after the verdict had been rendered and as the court stated in Stewart, supra, “thus there was no reason for the defense to question the prospective jurors on voir dire about this inherently prejudicial situation.” Because of the potential prejudice here we remand for a new trial generally as to all of the issues.

Because this case must be retried we feel that we should also address ourselves to the issue of the admissibility of the evidence of the operator’s indulgence in alcoholic beverages prior to the accident. It is well settled that evidence of drinking on the part of an operator of a vehicle involved in an automobile accident is inadmissible unless the evidence shows a degree of intoxication which proves unfitness to drive. Billow v. Farmers Trust Co., 438 Pa. 514, 266 A.2d 92 (1970); Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956). In our case Jeep offered to prove that the operator had been given a blood alcohol test three hours after the accident and that the test revealed a blood alcohol content of .12. Jeep’s expert then would have testified that since a person’s blood alcohol content decreases after drinking at the rate of .02 per hour and since three hours had elapsed since the time of the accident that his blood alcohol content at the time of the accident was .18 and that he was therefore “driving under the influence”. This offer of proof was rejected by the trial court. While we need not decide whether Jeep’s offer was sufficient to imply that the operator was unfit to drive at this time in light of the fact that we have reversed on other grounds, we do feel that we should indicate our skepticism of any blood alcohol test that “relates back” to a time earlier than the time the test is made. Alcohol has no effect until absorbed into the bloodstream which occurs from 30 minutes to 90 minutes after consumption. Thus, in the instant case, the operator could have had a blood alcohol test of .12 two and one-half hours after the accident, and have been unaffected in his driving if a great quantity of alcohol had been consumed a few minutes before the accident. In other words we cannot assume that the operator’s blood alcohol level ever was as high as .18. It could have been that his blood alcohol level was rising at the time of the test which would be the case if he had consumed a great quantity of alcohol just before the accident and was the type of person with a slow metabolism. The Legislature has expressly approved of the blood alcohol test as a means of determining whether a person is driving under the influence of intoxicating beverages. A blood alcohol content of .10 or above raises a presumption of intoxication. We feel that this presumption implies that a person with a blood alcohol content of .10 or above is unfit to drive. Otherwise why would driving under such conditions be unlawful? However, we regard with skepticism any evidence with attempts to relate back to a blood alcohol level at a time prior to the administering of such a test because such a test is entirely too speculative. See Commonwealth v. Hartman, 179 Pa.Super. 134, 115 A.2d 820 (1955) (Dissenting opinion of Ross, J.)

Because of the fact that the foreman of the jury in both of the consolidated cases was the husband of a secretary in the office of Schwarzbach’s attorney, we reverse and remand for a new trial generally in both cases.

SPAETH, J., files a concurring opinion. PRICE, J., files a concurring opinion in which SPAETH, J., joins. CERCONE, J., concurs in the result. HOFFMAN, J., files a dissenting opinion.