Burroughs Corp. v. Hall Affiliates, Inc.

Decision Date17 September 1982
Citation423 So.2d 1348
PartiesBURROUGHS CORPORATION, a corporation v. HALL AFFILIATES, INC., a corporation. 81-120.
CourtAlabama Supreme Court

Louis E. Braswell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellant.

Irvin J. Langford, George W. Finkbohner, Jr., and Stephen C. Olen of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee.

MADDOX, Justice.

Four issues are presented to this Court for review by defendant Burroughs Corporation. They are: whether there was an abuse of discretion by the trial court in its decision to deny Burroughs' motion for new trial because the jurors failed to respond to voir dire questions; whether the trial court committed prejudicial error in sustaining objections to the admissibility of Burroughs' Exhibit L, a business memorandum of a meeting between Hall Affiliates' programmer and Hall Affiliates' president relating to a discussion of programming and alleged problems; whether the trial court committed prejudicial error in sustaining Hall Affiliates' objections to questions asked by Burroughs of Mr. McCleery, president of the programming firm engaged by Hall Affiliates for the purpose of comparing the Burroughs equipment with competitive equipment of other manufacturers; and, finally, whether there was sufficient evidence to support a verdict of intentional or reckless fraud and to support the punitive damages award.

This suit stems from the purchase of a Burroughs B80 (or B80-40) computer system. The system was purchased from appellant Burroughs by appellee Hall Affiliates, one of thirteen affiliated corporations engaged in the business of importing artificial flowers. The contract for the purchase of the B80 computer and a terminal display (TD) unit was signed on December 8, 1977, with anticipated delivery scheduled for later in 1978. Contracts for a line printer and disc drive were signed on March 28, 1978.

On December 6, 1977, two days before the contract was signed for the purchase of the computer and terminal display, Hall Affiliates entered into a programming agreement with the programming firm Winston T. McCleery Consultants, to design customized programming for inventory and accounting purposes.

Hall Affiliates filed suit in August 1978, seeking damages of $500,000 for false and fraudulent representation and breach of warranty and contract. The facts which Hall Affiliates charged Burroughs materially misrepresented related to the capabilities of the B80 computer system. The specific representations alleged were:

1. The B80-40 would perform the accounting functions of Hall Affiliates and the inventory functions at the same time.

2. The B80-40 was capable of multiprogramming (running two programs simultaneously).

3. The B80-40 was capable of operating a TD in a data communications environment.

4. The B80-40 and all of its component parts, including the fixed drive disc, were new.

Burroughs filed a counterclaim seeking approximately $64,000 from Hall Affiliates as unpaid purchase price.

The trial court sustained repeated objections to the admissibility of Burroughs' Exhibit L, a business memorandum of a meeting between Brian McGuire of the programming firm and Mr. Hall, president of Hall Affiliates. The trial court likewise sustained objections by counsel for Hall Affiliates to questions asked by counsel for Burroughs comparing the Burroughs equipment with competitive equipment of other manufacturers.

The jury verdict awarded Hall Affiliates $500,000 on the fraud cause of action, the full amount sought. The verdict disallowed Burroughs any recovery on its counterclaim.

During the voir dire examination of the jury venire, Burroughs' attorney submitted two questions which were asked by the trial judge. One was whether the jurors or their family members had ever brought or begun lawsuits. The other was whether the jurors or their family members had ever been sued for non-payment of a bill.

After the verdict was returned, Burroughs learned that five of the 12 jurors, or their spouses, had been involved in prior litigation. At the hearing ore tenus on motion for a new trial, the three affidavits submitted by Burroughs, stating that the voir dire questions were formulated because the information sought by them would be used in exercising jury strikes, were stricken upon motion of Hall Affiliates. Burroughs called no witnesses at this hearing. Hall Affiliates called the five jurors made the subject of Burroughs' motion for a new trial and the jury foreman. The trial court judge entered detailed and specific findings of fact, including a finding that there was no probable prejudice to Burroughs in his order denying Burroughs' motion for new trial and judgment notwithstanding the verdict. We affirm conditionally.

Voir Dire Examination

One of the central issues in this case concerns the failure of five jurors to respond to questions submitted by appellant's counsel and asked by the trial judge during the voir dire examination of the jury venire. Counsel for Burroughs contends that because the prospective jurors failed to answer the questions, appellant was unable to utilize its jury strikes effectively and was, therefore, prejudiced and is entitled to a new trial. Burroughs relies on the case of Ex parte Ledbetter, 404 So.2d 731 (Ala.1981), wherein this Court reversed both the Court of Criminal Appeals and the trial court and held that the trial court erred in not granting a new trial. In that decision, this Court stated that on the issue of whether the petitioner was prejudiced by a juror's failure to respond to a question during voir dire, the "test is whether the petitioner might have been, not whether he actually was prejudiced." Id. at 733.

The earlier case of Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970), did not address the effect of an improper answer or failure to answer questions on voir dire which had they been answered properly would have disclosed a challenge for cause. 286 Ala. at 167, 238 So.2d 330. Rather, Freeman established the standard to which this Court must adhere in reviewing the trial court in those circumstances. Quoting from Freeman:

"We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant. This appears to be the general rule throughout the country....

"There is broad support for the proposition that the trial court's application of the probable prejudice test is subject to review only for abuse of discretion....

"This rule comports with logic and common sense. The trial judge heard the questions posed on voir dire and answers thereto. He is in the best position to make findings on the question of probable prejudice after the testimony is developed orally, or by affidavit, on new trial motion. His conclusions are then subject to our review for abuse of discretion.

* * *

* * *

"We are mindful of the heavy responsibility placed on the trial court to maintain the statutory right which parties have to a full and truthful disclosure by jurors on voir dire. However, we must also be aware of inadvertent concealment and failure to recollect on the part of prospective jurors.

"To re-emphasize, we say that we will review the trial court's ruling on motion for new trial predicated on jurors' improper answers to (or failure to answer) questions propounded on voir dire only for abuse of discretion in its determination as to probable prejudice." [Footnote omitted.]

286 Ala. at 166-167, 238 So.2d 330.

This Court reaffirmed these tenets expressed in Freeman in a recent decision, Estes Health Care Centers, Inc. v. Bannerman, 411 So.2d 109, 111 (Ala.1982).

At the hearing on motion for new trial, the trial judge heard the testimony of the five witnesses who had failed to respond to the questions during the voir dire examination. In denying appellant Burroughs' motion for judgment notwithstanding the verdict or in the alternative a new trial, he found and concluded:

"The court has carefully considered all the testimony and other evidence offered at the hearing on the Motion for New Trial and the Court has also considered the law submitted by all parties, including the following statements taken from cases submitted by plaintiff:

" 'It is impartial jury trial, not complete voir dire questioning, that is the ultimate right involved. Where, in the sound discretion of the trial court an infraction of the latter has no material impact upon the former, no prejudicial error has occurred.' Anderton v. Montgomery, 609 P.2d 28, 835 (Utah S.C.1980).

" '... The desideratum back of all lawsuits is the achievement of a fair and impartial trial rather than the almost impossible attainment of perfect procedures in a world of honest and well-meaning, but imperfect, human beings.' Laugherty v. Newcomb, (U.S.C.O. E.C. Tennessee, N.D.1962) 237 F.Supp. 524, 529.

"The Court finds that as to Jurors Ruth Williams, Dorothy Cochran, Geneva Jones and Jennie Green none of these jurors remembered the suits complained of so that there was no probable prejudice to the defendant because any of these jurors did not properly respond to the questions asked. The Court further finds that Juror Paul Trauner made an honest inadvertent mistake in his construction of the question asked and that in view of the testimony of the Jury Foreman that the vote was twelve (12) to zero (0) for the Plaintiff under Count One of the Complaint and ten (10) to one (1) for the full amount with one abstention on the first vote and that the Jurors considered only the evidence offered at the trial and the law submitted to them by the Court; the Court finds that there was no probable prejudice to the Defendant by Juror Trauner not responding to voir dire in the manner that Defendant has asserted as error.

"The Court further finds...

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