Kuzminski v. Waser

• Decision Date: 14 May 1942
• Docket Number: Gen. No. 41587.
• Citation: 41 N.E.2d 1008,314 Ill.App. 438
• Parties: KUZMINSKI v. WASER ET AL.
• Court: United States Appellate Court of Illinois

314 Ill.App. 438

41 N.E.2d 1008

KUZMINSKI

v.WASER ET AL.

Gen. No. 41587.

Appellate Court of Illinois, First District, Second Division.

May 14, 1942.

Appeal from Superior Court, Cook County; U. S. Schwartz, Judge.

Action by Albin Kuzminski, by John Kuzminski, his next friend, against E. J. Waser and another, doing business as Waser Auto Radiator Company, for injuries sustained by plaintiff when struck by defendants' truck. From a judgment in favor of plaintiff, defendants appealed to the Supreme Court, 374 Ill. 428, 29 N.E.2d 594, which transferred the case to the Appellate Court for the First District.

Judgment affirmed. Delmar J. Hill and Cyrus L. Garnett, both of Chicago, for appellants.

Henry Mitgang, of Chicago (Arthur A. Wolfinsohn, of Chicago, of counsel), for appellee.

SCANLAN, Presiding Justice.

An action for damages for personal injuries sustained by plaintiff. A jury returned a verdict finding defendants guilty and assessing plaintiff's damages at $5,000. Judgment was entered upon the verdict. Defendants' motion for a new trial, made nine days after the entry of the judgment, was overruled. Defendants prosecuted an appeal to the Supreme court (Kuzminski v. Waser, 374 Ill. 428, 29 N.E.2d 594, 595) “on the ground, as it is claimed, that although the appellants had the form they did not have the essence of due process of law or a constitutional jury trial.” The contention was based upon proof which was received on the motion for a new trial that Sonia Young, before she was accepted as a juror, had testified falsely on the voir dire examination to the effect that neither she nor any member of her family had been interested in a personal injury suit arising out of an automobile accident, whereas her husband had been the plaintiff in such a suit shortly before the instant trial. The Supreme court held that it had no jurisdiction of the cause for the reason that “the most that is claimed for the appellants amounts to an argument that a new trial should be granted because of the assumed bias of this juror,” and transferred the cause to this court.

Defendants state that they rely upon the following alleged errors for a reversal of the judgment: “1. The trial court erred, and violated defendants' constitutional guarantees of an impartial jury trial and due process of law, in not granting a new trial when it appeared, after trial, that one of the jurors, unknown to defendants, had given materially false answers on her voir dire. 2. The trial court erred in giving certain instructions to the jury at plaintiff's request. 3. The trial court erred in refusing to give a proper instruction tendered by defendants.” Although defendants' argument as to point 1 is based upon the assumption that the false statement made by the juror upon her voir dire “in and of itself disqualified her” and that “she therefore did not possess the statutory qualifications of a juror,” and “in that respect too the jury was not a constitutional jury,” nevertheless, we will assume that point 1 is broad enough to support a contention that the defendants were prejudiced by the false answers of the juror.

In Maher v. New York, C. & St. L. R. Co., 290 Ill.App. 267, 8 N.E.2d 512, the foreman of the jury had made misstatements and had not truly and fully answered questions put to him on his voir dire examination, “in that he was asked by counsel for defendant whether he or any member of his family had ever been involved in a personal injury case or whether he had ever been sued in a personal injury case, which questions were answered in the negative; that thereupon the prospectivejuror was examined by counsel for plaintiff, who asked, ‘Have you ever had any experience that might prejudice you against * * * the plaintiff?’ and ‘Nobody ever sued you for damages?’ and the answers were: ‘No, sir.’ ” 290 Ill.App. at page 269, 8 N.E.2d at page 513. Neither the defendant in that suit nor its attorney learned of the falsity of the answers until after the trial. In the opinion of this court, written by Mr. Justice O'Connor, appears the following (290 Ill.App. at pages 275, 276, 277, 8 N.E.2d at page 515):

“In the instant case, as in all cases, ‘the rule of reason’ must constantly be kept in mind. Judgments are not reversed for every error that appears in the record. If this were so, few, if any, would be permitted to stand. But we think the true test in the case at bar is not whether the prospective juror answered truthfully and fully the questions put to him, but, Has the petitioner been prejudiced in the case? Swan v. Boston Store, 191 Ill.App. 84;Pienta v. Chicago City R. Co., 208 Ill.App. 309;Edwall v. Chicago, R. I. & P. R. Co., 208 Ill.App. 489;Raub v. Carpenter, 187 U.S. 159, 23 S.Ct. 72, 47 L.Ed. 119;United States v. Rosenstein [2 Cir.], 34 F.2d 630;O'Brien v. General Accident, Fire & Life Assur. Corp., [8 Cir.], 42 F.2d 48;James v. State, 68 Ark. 464, 60 S.W. 29;State v. Cleary, 40 Kan. 287, 19 P. 776;State v. Brown, 114 Kan. 452, 219 P. 279; Schmidt v. Rose, 6 Mo.App. 579; Hayes v. Thompson, N.Y., 15 Abb.Prac., N.S., 220; Burden v. Stephens, 174 Okl. 312, 49 P.2d 1098;Suggs v. State, 46 Okl.Cr. 340, 285 P. 985;Sansouver v. Glenlyon Dye Works, 28 R.I. 539, 68 A. 545;Leeper v. State, 29 Tex.App. 63, 14 S.W. 398;Goad v. State, 106 Tenn. 175, 61 S.W. 79;Beck v. Thompson, 31 W.Va. 459, 7 S.E. 447, 13 Am.St.Rep. 870.

“In the Swan case, 191 Ill.App. 84, it was held that it was not reversible error for the trial judge to overrule the motion for a new trial because a juror had made incorrect and misleading answers on his voir dire examination, since it did not appear that the juror was prejudiced or biased against the defendant.

“In the Pienta case, 208 Ill.App. 309, a suit to recover for personal injuries, a prospective juror was asked whether he or any of his relatives had ever been in a street car accident, and whether he or they had ever been interested ‘in a case of that kind.’ He replied in the negative. It afterward appeared that his wife had met with an accident on a sidewalk and had settled a claim therefor with the city, and it was held that the reply was not untrue, and the judgment was affirmed.

“In the Edwall case, 208 Ill.App. 489, suit was brought to recover damages for personal injuries. The court there said (at page 503 of 208 Ill.App.): ‘A brother-in-law of one of the firm of defendant's attorneys (not the one that tried the case) was accepted on the jury without plaintiff's knowledge of that relation. Affidavits are filed here tending to show that the juror evaded questions put to him on his voir dire that ought to have developed the fact. * * * We do not regard this reversible error.’

“In Raub v. Carpenter, 187 U.S. 159, 23 S.Ct. 72, 47 L.Ed. 119, a motion was made to vacate a decree, one of the grounds being that one of the jurors was disqualified for service because he was under the age of 21 years and had several times been convicted of the crime of petit larceny, and it was charged that the juror had falsely answered questions put to him on his voir dire touching these two questions. The motion was overruled, and the Supreme Court of the United States held that the matter was within the discretion of the trial court. The court there refers to Wassum v. Feeney, 121 Mass. 93,23 Am.Rep. 258, where that court referred with approval to Hill v. Yates, 12 East 229, where it was said, ‘where the son of a juryman unlawfully served in his father's place, and pointed out that Lord Ellenborough there “said that he had mentioned the case to all the judges, and they were all of opinion that it was a matter within their discretion to grant or refuse a new trial on such a ground; that if no injustice had been done, they would not interfere in this mode.” ’

“In State v. Cleary, 40 Kan. 287, at page 295, 19 P. 776, at page 780, the court said: ‘It has been decided in very many reported cases that the most important consideration in questions about the impartiality of jurors is whether an unjust verdict has resulted from the presence of obnoxious jurors upon the panel. If not, it would be idle to grant a new trial, which would probably be productive only of the same result.’

“And in Suggs v. State, 46 Okl.Cr. 340, 285 P. 985, at page 986, the court said: ‘As a general rule a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause which existed before the juror was sworn, but which was unknown to accused until after the verdict, unless it appears from the whole case that the accused suffered injustice from the fact that the juror served in the case.’ To the same effect are the other cases above cited, but we think it would serve no useful purpose to discuss them.

“Since it is held in the cases above cited that it is not error for the court to overrule a motion for a new trial where a prospective juror has answered falsely or has not sufficiently disclosed the facts, unless prejudice is shown, with greater reason, we think, should the court deny a new trial where the motion, under section 72 of the Practice Act [Smith-Hurd Stats. c. 110, § 196], is not made until after judgment has been entered, and where, as in the instant case, the judgment has been affirmed on appeal to this court, and leave to appeal has been denied by the Supreme court.”

Leave to appeal in that case was denied. See 291 Ill.App. xxxii.

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