Miles v. F. E. R. M. Enterprises, Inc.
| Decision Date | 21 April 1981 |
| Docket Number | No. 3903-III-0,3903-III-0 |
| Citation | 627 P.2d 564,29 Wn.App. 61 |
| Court | Washington Court of Appeals |
| Parties | Samuel MILES and Dorothy Miles, husband and wife, Appellants, v. F.E.R.M. ENTERPRISES, INC., a Washington Corporation, Respondent. |
George A. Critchlow, University Legal Assistance, Spokane, for appellants.
Edward F. Shea, Shea, Kuffle & Lindsay, Pasco, for respondent.
The plaintiffs, who are black, sued, alleging racial discrimination in housing. The jury found discrimination but awarded zero dollars for both general and punitive damages.
The plaintiffs had contracted to purchase, at a reduced price because of a year-end clearance sale and discounts, a mobile home in Kennewick, Washington. The only lot they found upon which they could put their new mobile home was at Sagemoor Park, owned by the defendant. Plaintiffs preferred a corner lot. There was evidence the price was raised from $4,500 to $5,500 when the plaintiffs applied. There was also evidence defendant told plaintiffs that, of the two corner lots, one had been sold and the other was to be used for the defendant's office. A question arose as to whether the plaintiffs' F.H.A.-approved mobile home could be put on a non-F.H.A.-approved lot. If this were not possible, then the plaintiffs could not move to Sagemoor Park.
A witness testified that one of the owners of the defendant corporation told him over the phone she did not want blacks moving into Sagemoor early in its development and asked this witness not to refer blacks to Sagemoor. Although the above evidence was disputed, nevertheless, it does constitute substantial evidence by which the jury could have found racial discrimination in the lot sale or in effect discrimination in housing.
Since plaintiffs could not find a lot, the mobile homes dealer refunded the down payment to plaintiffs. Nine months later, they bought a different mobile home and placed it in a park in West Pasco. This new West Pasco lot was closer to schools and was more convenient for the plaintiffs. Since the original mobile home, which they had temporarily purchased and returned, was later sold by the mobile homes dealer, the plaintiffs had to buy a new mobile home. Because of new federal regulations, it cost considerably more, but was apparently better constructed than the original. The second lot also cost $2,000 more than the one which was denied them at defendant's mobile home park.
There also was substantial evidence the plaintiffs suffered no pecuniary loss because of discrimination; in effect, they had made money on this occurrence, since their new home and their new lot had appreciated considerably by the time of trial.
The plaintiffs sued F.E.R.M. Enterprises, alleging discrimination under both state and federal law. The jury was supplied with two forms, one a verdict for defendant, the other a verdict for plaintiffs with spaces thereon for actual and punitive damages. The jury returned a verdict for the plaintiffs, finding discrimination, but with "$0" written in the spaces for both actual and punitive damages. Both parties moved for judgment notwithstanding the verdict or for a new trial; plaintiffs also requested additur.
The trial court found the verdict was for plaintiffs on the issue of the fact of discrimination, but that plaintiffs had suffered no damages, and hence it was a defense verdict. Consequently, judgment was entered for defendant with costs.
Plaintiffs contend the trial court erred in denying one of their challenges of a juror for cause. Juror Merlin Goddard had filled out a questionnaire stating he had "some prejudice." He testified he would not want his sister to marry a black, and believed that although blacks should have the same rights as whites, blacks should only be allowed to marry within their race. There were also answers from Juror Goddard which would indicate he could be a fair and impartial juror. Plaintiffs' attorney then challenged Juror Goddard for cause, and the court denied the motion. Plaintiffs continued voir dire and discovered Goddard believed a landowner should be able to sell land only to whites and exclude blacks if he wished. Unaccountably, plaintiffs did not then renew the challenge but passed Juror Goddard for cause. Rather, plaintiffs then used their third and final peremptory challenge to excuse Goddard.
A litigant's constitutional rights are invaded when he is required to exhaust his peremptory challenges on a juror who should have been dismissed for cause. The failure to dismiss for cause is prejudicial in itself without regard to whether the final peremptory might have been used to dismiss another juror who sat on the panel. McMahon v. Carlisle-Pennell Lbr. Co., 135 Wash. 27, 28-31, 236 P. 797 (1925); State v. Muller, 114 Wash. 660, 661, 195 P. 1047 (1921); State v. Stentz, 30 Wash. 134, 143, 70 P. 241 (1902); State v. Rutten, 13 Wash. 203, 206, 43 P. 30 (1895); State v. Moody, 7 Wash. 395, 396-97, 35 P. 132 (1893).
If a juror should have been excused for cause but was not, the remedy is reversal. The discretion of the trial court to determine partiality of a juror is subject to review by this court under the constitutional guaranty to the accused of a trial by an impartial jury. State v. Rutten, supra. Actual bias is
the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, ...
RCW 4.44.170(2); see RCW 4.44.190. 1
The test for error is per Rich v. Campbell, 164 Wash. 393, 395, 2 P.2d 886 (1931):
A reading of the whole of the juror's examination (up to the time of the challenge for cause) convinces us that we would not be warranted in holding that the trial judge abused his discretion in overruling the challenge and permitting the juror to sit in the trial of the case.
We cannot hold it to be an abuse of discretion for the court to refuse to discharge a juror for cause in a case involving discrimination in the sale of realty merely because the juror believed people should marry within the same race. This juror did state he could be fair in this case. Plaintiffs should have renewed the challenge following subsequent examination which clearly disclosed bias concerning sales of real estate and a challenge for cause would lie.
The next issue is whether the trial court erred in concluding a verdict for plaintiffs with "$0" damages is a defense verdict. Courts have construed such a verdict in four ways. Some courts hold the verdict is invalid and order a new trial. Other courts conclude it is a defense verdict only if there is no evidence in the record of damages. Still other courts construe such a verdict as one for the defendant. Finally, some courts hold it is a verdict for the plaintiff. See Annot., 116 A.L.R. 828 (1938); Annot., 49 A.L.R.2d 1328 (1956).
A brief review of the common law distinction between trespass and "trespass on the case" is appropriate in distinguishing other similar cases. In a successful trespass action, the plaintiff sought money damages for an injury done to his person, property or his rights by the immediate force and violence of the defendant; 2 the law's regard for a person's property was so great that damages were presumed. Zimmer v. Stephenson, 66 Wash.2d 477, 479-80, 403 P.2d 343 (1965); Welch v. Seattle & Montana R.R., 56 Wash. 97, 99, 105 P. 166 (1909). In a "trespass on the case" action, however, there were no presumed damages, as the plaintiff's injury was not caused by direct force, but only as an indirect result of the defendant's acts. Zimmer v. Stephenson, supra; Welch v. Seattle & Montana R.R., supra. Thus, if this action is one in common law "trespass," a verdict for zero dollars would not show a failure of the plaintiffs to prove their action, as damages are presumed. If it is a "trespass on the case" action, a zero dollars verdict shows a failure of the cause and would properly be a verdict for the defendant.
Sheldon v. Imhoff, 198 Wash. 66, 87 P.2d 103 (1939), an automobile negligence action, is the only Washington case we have found which considered a verdict similar to the one at bench. However, the court reached no conclusion on the effect of it. There, the jury was instructed that if neither plaintiff nor defendant should recover under the action, then the jury should find for the defendant and should write "none" in the space for damages. This, the jury did. The court rendered judgment for the defendant. The Supreme Court held, with the instructions given, the jury had no choice but to find the way it did. In dicta, the court stated other courts have held the verdict of no damages is a defense verdict.
In support of its position, Sheldon cited Royal Indem. Co. v. Island Lake, 177 Minn. 408, 225 N.W. 291, 292 (1929). Plaintiff sued the city on a road contract seeking a different method of payment. The jury returned a verdict for the plaintiff for "none dollars" damages. On appeal from a verdict for the defendant, the appellate court held there was evidence to support a verdict for the defendant, and that the intent of the jury (that plaintiff had been fully compensated) was clear from the verdict and affirmed. Royal Indem. Co. v. Island Lake, supra, added a caveat that the verdict may be set side if defendant's liability is clearly shown.
Sheldon also cited Schwab v. Nordstrom, 138 Kan. 497, 27 P.2d 242 (1933), a trespass case. Schwab sued Nordstrom for assault and battery; Nordstrom counterclaimed alleging the same acts. The jury found both for plaintiff and defendant and awarded no damages to either. The appellate court held the uncertainty in the verdict could be explained by reference to the record, and was therefore proper.
The final case cited by Sheldon is Chapin v. Foege, 296 Ill.App. 96, 15...
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