Consolidated Gas & Equipment Co. of America v. Carver

• Decision Date: 30 June 1958
• Docket Number: No. 5700.,5700.
• Citation: 257 F.2d 111
• Parties: CONSOLIDATED GAS & EQUIPMENT COMPANY OF AMERICA, Appellant, v. Clarence F. CARVER and La Junta Equipment Company, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

257 F.2d 111 (1958)

CONSOLIDATED GAS & EQUIPMENT COMPANY OF AMERICA, Appellant, v. Clarence F. CARVER and La Junta Equipment Company, Appellees.

No. 5700.

United States Court of Appeals Tenth Circuit.

June 30, 1958.

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Duke Duvall, Oklahoma City, Okl., and Joseph N. Lilly, Denver, Colo. (V. G. Seavy, Jr., Denver, Colo., and Duvall & Head, Oklahoma City, Okl., on the brief), for appellant.

Raymond J. Connell, Denver, Colo., and Lawrence Thulemeyer, La Junta, Colo. (Yegge, Bates, Hall & Shulenberg, Denver, Colo., and Thulemeyer & Stewart, La Junta, Colo., on the brief), for appellee, Clarence F. Carver.

John P. Beck, Denver, Colo., for appellee, La Junta Equipment Co.

Before BRATTON, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

BRATTON, Chief Judge.

Clarence F. Carver instituted this action against Consolidated Gas & Equipment Company of America and La Junta Equipment Company, sometimes hereinafter referred to as Consolidated and Equipment, respectively, to recover damages for personal injuries and for medical and hospital expenses in the total amount of $34,840. The cause of action pleaded in the amended complaint was that at the time of the accident resulting in the injuries, plaintiff was employed at a service station; that the defendants negligently supplied to plaintiff's employer a defective and wrongfully riveted rim to be used in mounting a truck tire on a truck of the defendant Consolidated; that pursuant to the course of his employment, plaintiff mounted the tire on the truck; that due to the defective and wrongful manner in which the rim had been riveted, the lock rim blew off the tire; that plaintiff was struck on the leg and in the region of the pelvis and sustained disabling injuries; that he suffered great pain of body and mind; and that he incurred expenses for medical and hospital care. Each defendant denied negligence on its part; pleaded that the accident was caused by the negligence of plaintiff; pleaded contributory negligence; and pleaded unavoidable accident. And by cross claim, each defendant pleaded that, as between the two defendants, the negligence of the other defendant was the sole and proximate cause of the accident and resulting injuries. The cause was tried to a jury. At the conclusion of all the evidence, each defendant moved for a directed verdict in its favor. The motion of the defendant Consolidated was denied; the motion of the defendant Equipment was sustained; as between plaintiff and the defendant Consolidated, the cause was submitted to the jury; and the jury returned a verdict for plaintiff for $34,840, the full amount for which plaintiff sued. A consolidated motion for judgment notwithstanding the verdict or in the alternative for a new trial was filed and denied. An appeal from the judgment was seasonably perfected. Thereafter, a supplemental motion for a new trial was filed. The basis of the supplemental motion was misconduct of a juror by which the defendant Consolidated was prevented from having a fair trial. This court remanded the cause to the trial court for the purpose of enabling that court to entertain a motion for relief from the judgment under Rule of Civil Procedure 60(b), 28 U.S.C. The defendant Consolidated filed in the trial court a motion for such relief. A hearing was had, the motion was denied, and the motion and a transcript of the proceedings had in connection with it were transmitted to this court.

The hearing in the district court upon the motion for relief under Rule 60(b) was quite appropriate, complete, and adequate as a means of developing the pertinent facts. These facts, some developed from one source and some from another, were before the court at the time of the denial of the motion. In the course of the voir dire examination, the court asked members of the jury panel, including Wayne O. Littrell, whether any of them ever had a lawsuit where they sought to recover for personal injuries or defended against one who sought to recover for personal injuries. Although the court spoke audibly and clearly in propounding the questions, no response was made by Littrell. No peremptory challenge was directed to Littrell; he served as a member of the jury; and he acted as foreman. At the time he was examined, accepted, and acted as foreman of the jury, he had pending in the state district court an action in which he sought to recover actual and exemplary damages for personal injuries and loss of earnings suffered as the result of an accident which occurred at a roller skating rink aggravated by the manner in which he was picked up from the floor and carried out of the rink. During the deliberations of the jury of which he was a member and foreman, Littrell did not make any reference to the case pending in the state court. The jury was polled on two or three different aspects of the case, beginning each time with the juror sitting immediately on the left of Littrell and ending with Littrell. Littrell did not attempt to influence or persuade other members of the jury; the jury were fairly unanimous upon the different aspects of the case; and without undue delay, the jury reached a unanimous verdict. In addition to saying that he did not recall the particular question to which reference has been made being asked in the course of the voir dire examination, Littrell stated at the hearing upon the motion for relief from the judgment that at the time he served on the jury he did not consider himself involved in a lawsuit until it actually went to court; that at the time he sat on the jury no date had been fixed for the trial of his case in the state court; and that at such time, negotiations for settlement of such case were under consideration.

Rule of Civil Procedure 60(b), supra, provides in presently pertinent part that on motion and upon such terms as are just, the court may relieve a party from a final judgment for any reason justifying such relief. The rule is neither a substitute for appeal nor a conduit through which to channel a collateral attack upon a judgment of a court of competent jurisdiction. Providential Development Co. v. United States Steel Co., 10 Cir., 236 F.2d 277. And an application for extraordinary relief under its provisions must be clearly substantiated by adequate proof. Federal Deposit Insurance Corp. v. Alker, 3 Cir., 234 F.2d 113. But the rule is to be liberally construed as a grant of power to a court to vacate a judgment when such action is appropriate to accomplish justice. Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (opinion by Mr. Justice Black in which Mr. Justice Douglas joined); Tozer v. Charles A. Krause Milling Co., 3 Cir., 189 F.2d 242; Barber v. Turberville, 94 U.S.App.D.C. 335, 218 F.2d 34. It is clear that after the cause had been remanded for that purpose, the district court was clothed with jurisdiction to explore and determine — subject to review on appeal — the question whether the defendant Consolidated was entitled to be relieved from the judgment for misconduct on the part of a member of the jury which prevented such defendant from having the type of fair trial contemplated by law.

There is no present need to discuss the purpose or function of the voir dire examination of jurors. Neither is there any present occasion to discuss the paramount importance of providing methods and procedures for the selection of fair and impartial juries. To enter into an extended discussion of either would be merely to state in different language that which has been iterated and reiterated over a long period of years. Courts have many times concerned themselves with the effect of a juror making false answers or failing to answer questions propounded to him on his voir dire examination. There are cases holding that in an action for the recovery of damages for death or personal injuries, the act of a juror in the course of his voir dire examination in innocently or inadvertently giving or withholding insignificant information in respect to claims or actions for damages by or against himself or his immediate relatives, though false, does not require the granting of a new trial unless the unsuccessful litigant was prejudiced in his case. Stanczak v. Pennsylvania Railroad Co., 7 Cir., 174 F.2d 43; Maher v. New York, Chicago & St. Louis Railroad Co., 290 Ill.App. 267, 8 N.E.2d 512, certiorari denied 300 U.S. 665, 57 S.Ct. 508, 81 L.Ed. 873; Kuzminski v. Waser, 314 Ill.App. 438, 41 N.E.2d 1008; Pearson v. Gardner Cartage Co., 148 Ohio St. 425, 76 N.E.2d 67; Davis v. Kansas City Public Service Co., 361 Mo. 61, 233 S.W. 2d 679; Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348; Tyler v. Kansas City Public Service Co., Mo.App., 256 S.W.2d 563; Crutcher v. Hicks, Ky., 257 S.W.2d 539, 38 A.L.R.2d 620; Johnson v. Kansas City Public Service Co., Mo., 265 S.W.2d 417; Cincinnati, Newport & Covington Railway Co. v. Peluso, Ky., 293 S.W.2d 556. In some of these cases, the claim or action was remote in time with no indication that the juror was likely still to be influenced thereby; in some the asserted damage was insignificant; in some the amount paid was trifling; and in some a claim agent appeared without invitation, sought a release from liability, and paid a nominal amount therefor.

The claim and action of the juror in this case were not remote in time. The injury to the juror occurred less than two years prior to the time of his voir dire examination; the action was pending; and negotiations for its settlement were under way. The claim asserted by the juror was not nominal in amount. In the complaint in the action the juror sought actual damages in the sum of $133,150, and exemplary damages in the sum of $25,000. And the general nature of the injuries pleaded in the complaint of the juror and those pleaded in the amended complaint of the plaintiff in this case bore marks of similarity. The juror there and the plaintiff here each asserted disabling...