Mobil Chemical Co., a Div. of Mobil Corp. v. Hawkins

• Decision Date: 14 September 1983
• Docket Number: No. AQ-165,AQ-165
• Citation: 440 So.2d 378
• Parties: MOBIL CHEMICAL COMPANY, A DIVISION OF MOBIL CORPORATION, Appellant, v. Carl R. HAWKINS, Appellee.
• Court: Florida District Court of Appeals

Page 378

440 So.2d 378

MOBIL CHEMICAL COMPANY, A DIVISION OF MOBIL CORPORATION, Appellant, v. Carl R. HAWKINS, Appellee.

No. AQ-165.

District Court of Appeal of Florida First District.

Sept. 14, 1983.

Rehearing Denied Nov. 3, 1983.

Julian Clarkson of Holland & Knight, Tallahassee, Charles H. Kirbo and Michael C. Russ of King & Spalding, Atlanta, Ga., for appellant.

Alan C. Sundberg, George N. Meros, Jr., and J. Robert McClure, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, and Edwin B. Browning, Jr. of Davis, Browning & Hardee, Madison, for appellee.

David G. Owen, Columbia, S.C., for amicus curiae FMC Corp.

Stephen F. Baker, Winter Haven, for amicus curiae Florida Agr. Research Institute, Inc.

John D. Conner, Jr. and Raymond B. Biagini of McKenna, Conner & Cuneo, Washington, D.C., for amicus curiae Nat. Agr. Chemicals Ass'n.

Mygnon C. Evans, Lakeland, for amicus curiae Florida Citrus Mutual.

THOMPSON, Judge.

Mobil Chemical Company (Mobil) appeals a judgment awarding appellee compensatory and punitive damages pursuant to the jury's verdict finding that Mobil breached express and implied warranties, and knowingly made certain misrepresentations in connection with the sale of its nematicide-insecticide, Mocap. Mobil's principal contentions on appeal are that a new trial should have been granted because of juror misconduct and that a directed verdict should have been granted in Mobil's favor with respect to the punitive damage count. We agree with both of these contentions and reverse.

During voir dire of prospective jurors, the trial judge introduced the parties and their attorneys to the members of the venire, and the attorneys then read to the venire the names of their prospective witnesses. The names of the attorneys and several of the witnesses were thereafter repeated before the venire as specific questions were asked of individual prospective jurors. Among the names so repeated was that of A.E. Crawford, appellee's father-in-law. In another question, the prospective jurors were asked if any of them knew "the Crawford family." Another name repeated before the venire was that of Judge Bobby Kirby, an attorney who represented appellee in this case prior to being elected judge and who retains a fee interest in this case by virtue of that prior representation. As the voir dire progressed, and as individual prospective Florida Rule of Civil Procedure 1.431(c)(1) provides as follows:

                jurors were excused and replaced in the jury box by other members of the venire, the court and the attorneys for both parties increasingly relied on the commendable (and, we believe, universally practiced) time saving technique of asking the new prospective jurors whether they had heard the questions asked previously, and whether their answers would differ from those given by the other prospective jurors.  The last person on the venire to be called into the jury box answered "No" to the court's questions whether she knew "anything about this case or anyone involved" and whether her answers to the previously asked questions would be "unusual."   When Mobil's counsel asked this prospective juror if she had heard the questions asked of the other jurors and whether her answers would be the same as theirs, she responded affirmatively.  Based on these responses, the juror was accepted as qualified by both parties, and was seated on the jury.  After conclusion of the trial, counsel for Mobil discovered that the juror was a member of the Crawford family, was the second cousin of appellee's wife, and had been a client of Judge Kirby's as recently as one year before the trial
                

On motion of any party the court shall examine any prospective juror on oath to determine whether he is related to any party or to the attorney of any party within the third degree or is related to any person alleged to have been wronged or injured by the commission of the wrong for the trial of which the juror is called or has any interest in the action or has formed or expressed any opinion or is sensible of any bias or prejudice concerning it or is an employee or has been an employee of any party within 30 days before the trial. A party objecting to the juror may introduce any other competent evidence to support the objection. If it appears that the juror does not stand indifferent to the action or any of the foregoing grounds of objection exists or that he is otherwise incompetent, another shall be called in his place. (emphasis supplied).

In Florida, the rule to be applied in determining degrees of kinship is the common law rule, under which second cousins are held to be related within the third degree. See E. Simon, Redfearn Wills and Administration in Florida, § 20.10 at 377, n. 23 (5th Ed.1977); Trawick, Florida Practice & Procedure, § 23-6 (1982). See also Walsingham v. State, 61 Fla. 67, 56 So. 195 (1911), wherein a juror who was a second cousin of the decedent's wife was held related by affinity to the decedent within the third degree. Thus, the juror who failed to disclose her relationship to appellee's wife was subject to challenge for cause under the rule, and we have not the slightest doubt that she would have been so challenged had this relationship been revealed.

Appellee's argument that reversal is not required because Mobil has failed to prove that the juror was biased in his favor or that the juror even knew of her relationship to him must fail. In our view, the above quoted rule and its predecessor statute, § 53.021(1), Fla.Stat. (1971), were respectively promulgated and enacted on the basis of a commonly held (and probably accurate) presumption that persons related to a party within the third degree know of the relationship and are prejudiced thereby. Obviously, if prejudice is presumed no burden of proving prejudice exists. If a jury verdict in a case such as this is to be allowed to stand at all, logic would dictate that the burden be placed on appellee to prove an absence of bias, and not vice versa. Furthermore, we believe that the rule was intended to eliminate both actual impropriety and any appearance of impropriety. The public perception of our system of justice would hardly be enhanced by a rule which permitted a relative of a party to sit in judgment of that party's dispute with an outside party.

The case of State v. Rodgers, 347 So.2d 610 (Fla.1977), wherein an underaged juror lied about her age in order to be seated on the jury, is clearly distinguishable. The fact that a person has not attained the age We also reject, as being entirely without merit, appellee's argument that Mobil waived its right to challenge the juror post-trial by failing to specifically ask her on her voir dire about any relationship she might have with the Crawford family or appellee's wife. It is abundantly clear from the transcript of the voir dire proceedings that no person sufficiently perceptive and alert to be qualified to act as a juror could have sat through the voir dire without realizing that it was his or her duty to make known to the parties and the court any relationship with any of the named parties, witnesses, or attorneys. Nevertheless, the juror failed to reveal her relationship to appellee's wife and to his former attorney. Her failure to disclose material information bearing on her possible bias and her qualifications to serve as a juror deprived Mobil of its right to intelligently participate in selection of the jury, and gives rise to an unacceptably strong inference that Mobil did not receive the fair trial to which it was entitled. Accordingly, we reverse and remand for a new trial.

of majority may give rise to an inference that he or she lacks the maturity necessary to the proper discharge of the solemn responsibilities of jurors. However, age, unlike kinship, will not ordinarily support an inference of bias for or against a particular party in a particular case.

We further conclude that the trial judge erred in permitting the appellee's claim for punitive damages to go to the jury. It is the established law of this state, as recently reaffirmed by our Supreme Court, that punitive damages are not awardable for a breach of contract unless the conduct constituting the breach of contract is accompanied by wrongful conduct which amounts to a distinguishable and independent tort. Southern Bell Telephone & Telegraph Co. v. Hanft, 436 So.2d 40 (Fla.1983); Lewis v. Guthartz, 428 So.2d 222 (Fla.1983); Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957).

Here, the representations which created the warranty alleged to have been breached are precisely the same representations as those which the appellee chooses to characterize as tortious misrepresentations, and upon which appellee relies as the basis for his claim for punitive damages. Appellee did not plead and prove an independent tort against him. The case of Johnson v. Lasher Milling Co., Inc., 379 So.2d 1048 (Fla. 1st DCA 1980) is not to the contrary. There, the defendant deliberately defrauded the plaintiff by misrepresenting the weight of loads of corn sold to pl...