Brinkman v. Hovermale

• Decision Date: 31 March 1938
• Docket Number: 15418.
• Citation: 13 N.E.2d 885,106 Ind.App. 70
• Parties: BRINKMAN et al. v. HOVERMALE et al.
• Court: Indiana Appellate Court

13 N.E.2d 885

106 Ind.App. 70

BRINKMAN et al. v. HOVERMALE et al.

No. 15418.

Appellate Court of Indiana, in Banc.

March 31, 1938

John E. Osborn, of Greensburg, Chas. A. Lowe, of Lawrenceburg, and Malcolm B. Routt, of Indianapolis, for appellants.

Davidson & Rolfes and Turner & Woodfill, all of Greensburg for appellees.

DUDINE Presiding Judge.

This is an action instituted by appellants against appellees to contest the will of Roll T. Brinkman, deceased.

The issues were formed by an amended complaint, a supplemental complaint, and answers in general denial. A guardian ad litem was appointed for the minor defendants, and said guardian ad litem filed answers in general denial for and in behalf of them.

The cause was submitted to a jury for trial, and the jury returned a verdict for the defendants "that said will of Roll T. Brinkman is a valid will." Appellants duly filed a motion for new trial which was overruled, and appellants assign said action of the court as the sole error relied upon for reversal.

The causes for new trial presented are: (1) Alleged misconduct of a juror in falsely answering a question asked him by appellants' counsel in voir dire examination: (2) alleged misconduct of one of the defendants in inducing the same juror to take him, said defendant and his daughter, another defendant, to and from court in said juror's automobile one day during the trial of the cause and in so riding with said juror.

The record shows that on voir dire examination said juror was asked the following questions with reference to his relation with the defendants, and said juror answered as follows:

"Q. And have you had any business transactions with any of them? A. No, I guess not.

"Q. Are you affiliated with them in the same church lodge or organization? A. No sir."

Affidavits were filed in support of said first mentioned alleged cause for new trial, and oral evidence was heard by the court on the subject of said juror's relation with the defendants. Appellants contend said affidavits and said oral evidence show that said juror and one of the defendants had been members of the Christian Church of Westport in Decatur county, Ind., for a long time, and had been "affiliated together and as members of said church, and actively so," and appellants contend, further, that therefore said juror's answers to said questions on voir dire examination were false and misleading, and constituted such misconduct as entitles appellants to a new trial.

The evidence does show that said defendant claimed to be a member of the church of which said juror was a member, but that said defendant attended church only "once in a while * * * in the spring and fall usually and then not very much" that she taught Sunday school once at the church while said juror was superintendent of Sunday school; that the juror called at said defendant's home once and spoke to her about "collecting for the church."

We approve the language of our Supreme Court in Foreman v. State, 1932, 203 Ind. 324, 180 N.E. 291, 293, which is as follows:

"The law plainly entitles litigants to impartial, unbiased persons for jurors, and secondly, the right to peremptory challenges, the number depending upon the character of the case. * * *

"The rights of litigants, as affected by untruthful answers of jurors on their voir dire examination, have been before the courts many times and under various circumstances. From the decisions examined we draw the general conclusion that a juror's failure to make full and truthful answers to questions asked him on his voir dire examination concerning his relation to the parties litigant, or to others directly or indirectly interested in the outcome of the litigation, is misconduct and will be regarded as prejudicial for the reason it impairs the parties right to challenge."

See statements to the same effect in Pearcy v. Michigan Mutual Life Ins. Co., 1887, 111 Ind. 59, 12 N.E. 98, 60 Am.Rep. 673; Johnson et al. v. Tyler et al., 1891, 1 Ind.App. 387, 27 N.E. 643.

That such a rule is recognized generally by the courts is clear, but the result to be reached, when such rule is applied, is not always clear. In many cases it is quite difficult to determine whether the juror's answers were "full and truthful" as required by said rule. Whether or not a juror's answers to such questions on voir dire examination are "full and truthful" is a question for the trial court to determine from the evidence submitted to it. The overruling of the motion for new trial in the instant case indicates that the trial court found that said answers were "full and truthful," as required by said rule.

Words must be given their ordinary meaning unless it is shown that a different meaning is intended. There is no showing that a different meaning of the word "affiliated" was intended when appellant's counsel asked the juror whether he was "affiliated" with the defendants "in the same church, lodge or organization." The word affiliate " usually" means "to bring or receive into close connection, to ally." Webster's New International Dictionary. We think the evidence fails to show conclusively that the juror was "affiliated" with the defendant, within the ordinary meaning of that term; that the evidence sustains the finding of the trial court that said juror's answers were "truthful" as is required by said rule announced in Foreman v. State, supra.

Said rule requires juror's answers on voir dire examination to be not only truthful, but "full" as well. See Pearcy v. Michigan Mutual Life Ins. Co., supra.

In the voir dire examination of said juror, in answer to questions proposed by appellants' counsel, said juror testified explicitly that he was acquainted with all the defendants, that he lived about one and a half miles from said defendant who attended said church. There is no evidence in the record which shows or tends to show that said juror attempted to "cover up" any relation between him and any of the defendants. The evidence shows that said answers were not "half-truths" which were likely to mislead counsel and induce him to refrain from exercising a peremptory challenge which he would have exercised if more complete answers had been made. Having in mind all the voir dire examination of said juror and all the evidence introduced on the subject of his relation with the defendants, we hold there is ample evidence in the record to sustain the trial court's finding that said juror's answers were "full" as required by said rule.

Appellant cited Foreman v. State, supra, Pearcy v. Michigan Mutual Life Ins. Co., supra, and Johnson et al. v. Tyler, supra, in support of their said contention. The facts in each of said cases distinguish them from the instant case and make the decision in each of said cases inapplicable here.

The evidence submitted on the subject of said juror's alleged misconduct in conveying two of the defendants to and from court in his automobile and on the subject of said defendants' misconduct in so riding in the juror's automobile conclusively shows the following:

The cause was tried in Greensburg, Ind. Said juror lived out in the country about fifteen miles from Greensburg. Said defendants John Hovermale, who was administrator with the will annexed of the estate of the decedent, and Ruth Hovermale, said administrator's thirteen year old daughter, lived about seventeen miles from Greensburg and about two miles beyond the juror's home. The trial lasted several days. In the evening of the second day of the trial before the completion of the evidence but after adjournment of court, said defendant administrator broke the crankshaft of his automobile. He had been attending the trial each day and had used said automobile as his means of conveyance. The next morning he came to the juror's home and told him about breaking the crankshaft in his automobile, and asked the juror to take him and his daughter to Greensburg and bring them back that day. The juror told them he would take them if they would not discuss the case. With such an understanding the juror did take said defendants to Greensburg. As soon as they got to Greensburg the juror told the trial judge about bringing the defendants to Greensburg, and the judge told him "it was not the right thing to do and not do it again." That evening the juror took the defendant back in his car to a point about one mile from their home, from whence the defendants walked home. Nothing was said about the cause while said defendants and said juror were so associated.

Appellants emphasize the distinction between misconduct of a juror in which a prevailing party litigant is implicated and such misconduct in which no litigant is implicated. We believe appellants admit that when no prevailing party litigant is implicated in such misconduct courts must not only find the juror guilty of misconduct, but must also find that the misconduct probably affected the verdict. Appellants contend, however, "Where the misconduct is that of the prevailing party, * * * the court will not constitute an inquiry as to the probable effect of such misconduct upon the verdict. * * *" (Our italics.) Citing Davis v. State, 1871, 35 Ind. 496, 9 Am.Rep. 760; Huston v. Vail, 1875, 51 Ind. 299; Pittsburgh, C., C. & St. L. Ry. Co. v. Welch, 1895, 12 Ind.App. 433, 40 N.E. 650; Hutchins v. State, 1894, 140 Ind. 78, 39 N.E. 243, 244.

Davis v. State, supra, is not in point and does not support said contention. See further reference to said authority in this opinion.

Hutchins v. State, supra, was a criminal case in which appellant was tried by jury and convicted of rape. On appeal alleged misconduct of a deputy prosecutor, in privately speaking to a juror and thus offering to perform an errand for the juror was set up as a cause for...