Photostat Corporation v. Ball, 7745.

• Decision Date: 25 November 1964
• Docket Number: No. 7745.,7745.
• Citation: 338 F.2d 783
• Parties: PHOTOSTAT CORPORATION and Lloyd Randall Ward, Jr., Appellants, v. Harold E. BALL, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

338 F.2d 783 (1964)

PHOTOSTAT CORPORATION and Lloyd Randall Ward, Jr., Appellants, v. Harold E. BALL, Appellee.

No. 7745.

United States Court of Appeals Tenth Circuit.

November 25, 1964.

John J. Alder, Kansas City, Kan. (H. S. Roberts, Kansas City, Kan., was with him on brief), for appellants.

Robert H. Bingham, Kansas City, Kan. (Lee E. Weeks and George Maier, Jr., Kansas City, Kan., were with him on brief), for appellee.

Before MURRAH, Chief Judge and BREITENSTEIN and HILL, Circuit Judges.

MURRAH, Chief Judge.

On this appeal, the defendant-appellant complains of the refusal of the trial court to grant a new trial for failure of sitting jurors to fully answer questions propounded on voir dire concerning their acceptability to sit in the case. The pertinent facts are these.

The suit for personal injuries arose out of an automobile accident, and came on for trial in the latter part of 1963. In the course of voir dire examination by the court, the panel was specifically asked whether any member had ever been a plaintiff or brought an action against anyone else seeking to recover for personal injuries for negligence on the part of another. One prospective juror answered that his wife was involved in an automobile accident in 1956, but her claim had been settled without suit. The court then inquired of the panel whether anyone else "has had any claim growing out of the alleged negligence of another?"; or if any member of his immediate family had ever been so involved. At that point, Juror Schmidt answered that several years ago his daughter was struck by an automobile, but she was not injured and the matter was amicably settled without suit. The court then inquired if anyone else "has had any member of his or her immediate family involved in such matter"; and further, "whether any member of your immediate family had any claim asserted against you or your immediate family by anyone else who claimed to have been injured?" There was no further response by any of the other prospective jurors to these questions. The trial of the case resulted in a substantial verdict for the plaintiff.

On a hearing on the motion for new trial, Juror Schmidt testified that in addition to his daughter's claim, mentioned on voir dire, he and his wife had been involved in an accident in 1959 similar to the one in suit; that the claim had been settled without suit for the sum of $2000, paid by an insurance company. Another juror testified that she had been involved in an automobile accident in 1962, resulting in a whiplash neck injury, and that she had been paid $409.68 by an insurance company. Another juror testified that his wife had been involved in an automobile accident in 1958 and had been paid the sum of $900 in settlement of her claim. He also testified that about "12 or 13 years ago" he had a claim for injuries arising out of an automobile accident for which he had been paid approximately $1300 for personal injuries and property damage in an out-of-court settlement. He further testified that over the years he had been involved in five or six accidents "of a minor nature", none of which resulted in a lawsuit. The wife of another juror testified that her husband had been involved in an automobile accident. She did not fix the time or nature of the accident. The husband-juror was then called by the plaintiff. He testified that the accident was of a minor nature and that he had received a settlement of $100 for personal inconvenience and damages to his automobile. All of these jurors testified that they were under the impression that the court's inquiries on voir dire related only to lawsuits and not to claims.

At the conclusion of the hearing on the post-verdict motion, the court specifically found that "no single juror intentionally made any misstatement or intentionally intended to fail to reveal anything that would have been of value to the court or counsel." The court was furthermore convinced that "this was a good jury, a fair jury, and this was a fair trial as far as the jury was concerned."

We accept the trial court's finding with respect to the good intentions of these jurors, and also the view that they were not disqualified for cause, or in any event, that the court could have justifiably denied a challenge for cause. But our lawsuit does not turn on the misconduct of these jurors. The decisive question is whether failure to disclose pertinent facts, either intentionally or unintentionally, had the effect of substantially impairing the right of peremptory challenge.

The Constitution does not provide any formula or procedures for the ascertainment of a mental attitude or state of mind from which requisite impartiality is to be determined. See United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78; Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187; Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734. The common law and the statutes have, however, laid down definite safeguards for the effectuation of the constitutional guaranty. The common law cautiously excludes from the jury box for implied prejudice persons occupying a certain status or relationship to a litigant. See Cooley's Blackstone, Vol. 2, p. 223. In those enumerated categories the law conclusively presumes bias or partiality. See United States v. Burr, 25 Fed.Cas. pp. 49, 50, No. 14,692. See also Mr. Justice Frankfurter dissenting in Dennis v. United States, supra, 339 U.S. p. 181, 70 S.Ct. p. 525.

Statutory law has relaxed the rigidity of the common law, and with enumerated exceptions has committed to the trial judge the power to excuse or exclude for good cause any person called as a juror. 28 U.S.C. § 1863. And, all challenges for cause or favor are determined by the court. 28 U.S.C. § 1870. "While impaneling a jury the trial court has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefor." Dennis v. United States, supra, p. 168, 70 S.Ct. p. 521.

Then, as if out of an abundance of precaution, the statute preserves the common-law right to peremptorily challenge a prospective juror for suspicion of bias or partiality. The right is a traditional, arbitrary and capricious one and "it must be exercised with full freedom, or it fails of its full purpose." Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011....