Kwaiser v. Peters
| Decision Date | 10 June 1968 |
| Docket Number | No. 13,13 |
| Citation | 381 Mich. 73,158 N.W.2d 877 |
| Parties | Gerald F. KWAISER, Jr., Plaintiff and Appellant, v. Charles B. PETERS, d/b/a Peter's Bar, Defendant and Appellee. |
| Court | Michigan Supreme Court |
Joseph J. Trogan, Saginaw, for plaintiff and appellant.
Stanton, Davidson & Carl, Saginaw, for defendant-appellee.
Before the Entire Bench.
SOURIS, Justice (for reversal and remand).
We granted leave to appeal for the limited purpose of determining whether the trial court erred in denying plaintiff's motion for new trial based upon allegations that a juror improperly associated with defendant and his counsel immediately after verdict favorable to defendant and that the same juror falsely answered his personal history questionnaire required by GCR 1963, 510. 379 Mich. 765. The Court of Appeals affirmed the trial court. 6 Mich.App. 153, 148 N.W.2d 547.
At an evidentiary hearing on plaintiff's motion for new trial, witnesses testified that within about an hour after return of the jury's verdict, the defendant tavern owner and one of the jurors entered the defendant's tavern, where they were joined soon thereafter by defendant's trial counsel and several members of counsel's law firm. At least some of the group, including the juror, were served beverages. None of the witnesses heard any of the conversation of the group of which the juror was a part.
The juror, the defendant, and the defendant's lawyers were not called by plaintiff to testify at the hearing on his motion, nor did they testify voluntarily. No other proofs were offered from which it could be found that the juror was known by the defendant or his attorneys before the trial or the they had communicated about the case privately before or during the trial. In short, this record is barren of any evidence that the plaintiff was prejudiced by the conduct of defendant, his attorneys and the juror. The question becomes whether, absent a showing of prejudice, a new trial should have been granted because defendant and his attorneys fraternized with a juror immediately after a verdict was rendered favorable to defendant.
Just recently, in People v. Schram (1966), 378 Mich. 145, 142 N.W.2d 662, where the assistant prosecutor, during the trial of a criminal case, conversed with two jurors, a majority of this Court refused relief to the defendant absent a showing of prejudice to him. Other criminal cases were cited by our majority in Schram in support of its conclusion. 1 If prejudice must be shown affirmatively, even in a criminal case and even when the alleged misconduct occurred during trial, no less is required in a civil case in which the alleged misconduct occurred after verdict. Indeed, in Hoskin-Morainville Paper Co. v. Bates Valve Bag Corp. (1934), 268 Mich. 443, 256 N.W. 477, this Court, unanimously, said so. A majority of this Court is not prepared to overrule Hoskin and Schram, and the other criminal cases cited in Schram. Accordingly, plaintiff's appeal on this ground must fail.
At the hearing on the plaintiff's motion for new trial, evidence was introduced to support plaintiff's claim that the same juror answered the juror personal history questionnaire, required by GCR 1963, 510, untruthfully in several respects. For example, he wrote on the questionnaire that he never had been convicted of a crime or misdemeanor other than for a non-moving traffic violation. However, plaintiff's evidence showed that the juror had been convicted for moving traffic violations at least nine times from 1953 through 1963. 2 Again, with reference to this aspect of the inquiry before the trial court, the juror was not called to testify by either party. On this record, therefore, and for the purpose of this decision only, we must conclude that the juror perjured himself in answering as he did his juror's questionnaire.
We have held that a party is entitled to truthful answers from a prospective juror during his Voir dire examination. Wood v. Henley (1941), 296 Mich. 491, 497, 296 N.W. 657, and In re Petition of City of Detroit to Condemn Lands for Sewage Disposal Plant (1937), 280 Mich. 708, 716, 274 N.W. 375. In Wood, supra, a juror failed to disclose an indebtedness to the plaintiffs. When plaintiffs discovered this fact, during trial, their motion for mistrial based thereon was denied on the ground that plaintiffs had every opportunity to know the facts before trial commenced and, in any event, mere indebtedness to a party, it was said, does not disqualify a juror. Wood, however, does acknowledge the general proposition that litigants are entitled to truthful answers on Voir dire. No reason has been suggested to us for reaching a contrary conclusion with reference to the juror's questionnaire required by our court rules only since January 1, 1963.
In this case, unlike Wood, supra, the juror's false answer was not such that either litigant could have known the facts except fortuitously. Furthermore, had the question been answered truthfully, it is much more likely than not that further inquiry would have been made by either counsel or by both at the Voir dire examination. As has been said before, a litigant's right to trial before an impartial jury (Const.1963, Art I, § 14) requires that he be given an opportunity to obtain the information necessary to challenge prospective jurors for cause or peremptorily. Bunda v. Hardwick (1965), 376 Mich. 640, 138 N.W.2d 305 (dissenting opinion).
A false answer on a juror's questionnaire, such as was given here, diverts counsel's inquiry on Voir dire and thereby precludes his effective exercise of his client's right to challenge the juror. If we are to insist upon counsel's use of the questionnaire to facilitate and expedite Voir dire examinations, see Fosness v. Panagos (1966), 376 Mich. 485, 138 N.W.2d 380, we must be prepared to assure counsel that the questionnaires are reliable in every Material respect and, if they are not, we should be prepared to order a new trial as well as to cite the errant juror for contempt of court. The trial court, as far as this record shows, did neither in this case.
I would reverse and remand for new trial. Plaintiff should be allowed to tax his costs.
I do not agree with Justice Souris' reversal and remand for new trial. I vote to affirm.
Juror Ruffus Thomas' answers on the form entitled 'Juror Personal History Questionnaire' disclosed that he had been a resident of Saginaw county for 18 years; that he was 43 years old, married and lived at home with his seven children between the ages of eleven and four; that he was employed at the Saginaw Malleable Iron Works as a 'chiper'; that he had previously been employed as a barber; that he only had a seventh grade education; that he owned a car insured with 'Fenix Insurance Co.'; that he had been in an accident and that his wife had also been in an accident; that he had never served as a juror before filling out the questionnaire.
During the course of the trial, juror Ruffus Thomas asked the court to be excused from jury duty because of his sister's death and his father's involvement in a serious automobile accident. A conference with the attorneys was held in the judge's chambers, and the court suggested that juror Thomas be released from further duty and the case be allowed to proceed to a verdict by ten of eleven jurors. Defendant's counsel agreed, but plaintiff's counsel would not, and insisted that Thomas remain on the jury. The court thereupon adjourned the trial to allow juror Thomas to make a trip to Tennessee.
This was an action against Charles B. Peters, d/b/a Peter's Bar, under the civil damages provision of the so-called 'dramshop act.' 1 The sole question for jury determination was whether or not the defendant, Charles B. Peters, or his agents, servants or employees, served alcoholic beverages to one Harvey Krause so as to cause...
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...M.S.A. § 27A.1352, and the verdict was unanimous, no prejudice resulted, because the result was not affected. Kwaiser v. Peters, 381 Mich. 73, 79-80, 81, 158 N.W.2d 877 (1968) (separate opinions of Dethmers, C.J. and Adams, J., for affirmance). Second, although counsel has a right to rely o......
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...166 N.W.2d 661 (1968). Notably, the Engberg Court relied on Kwaiser v. Peters, 6 Mich.App. 153, 148 N.W.2d 547 (1967), aff'd. 381 Mich. 73, 158 N.W.2d 877 (1968), a case in which this Court required a showing of prejudice.3 We note that our holding does not address situations in which it is......
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...289 S.W.2d 686, 688(2); 88 C.J.S. Trial § 122, at p. 244; cf. Kwaiser v. Peters, 6 Mich.App. 153, 148 N.W.2d 547, 551(7), aff'd 381 Mich. 73, 158 N.W.2d 877; Pardue v. Citizens Bank & Trust Company, Ala., 247 So.2d 368, 377(6, 7); Blount County v. Hollingsworth, 45 Ala.Civ.App. 401, 231 So.......
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...might be persuasive, but since only the conduct of one juror is involved, we do not deem Eglar to be controlling. In Kwaiser v. Peters, 381 Mich. 73, 158 N.W.2d 877 (1968), a verdict was returned by a court of 11 to 1 and one juror was subsequently challenged for his misconduct. Justice Kel......