Sathren v. Behm Propane, Inc.

• Decision Date: 28 August 1989
• Docket Number: No. 880284,880284
• Citation: 444 N.W.2d 696
• Parties: Gerard SATHREN, Plaintiff and Appellant, v. BEHM PROPANE, INC., Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 696

444 N.W.2d 696

Gerard SATHREN, Plaintiff and Appellant, v. BEHM PROPANE, INC., Defendant and Appellee.

Civ. No. 880284.

Supreme Court of North Dakota.

Aug. 28, 1989.

Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for plaintiff and appellant; argued by Steven L. Latham.

Pearce & Durick, Bismarck, for defendant and appellee; argued by B. Timothy Durick.

GIERKE, Justice.

Gerard Sathren appeals from a district court judgment denying his motion for a new trial and dismissing his cause of action against Behm's Propane, Inc. [Behm]. We affirm.

Sathren brought this personal injury action against Behm for injuries sustained in an industrial accident. During voir dire examination of the jury Sathren's counsel asked juror Kennedy, who owned a commercial scale repair business, if Kennedy had a business relationship with Behm. Kennedy replied that he did not. ¹ Kennedy served on the jury, which rendered a verdict in Behm's favor.

Post-verdict inquiries led Sathren to hire a private investigator, who discovered that Kennedy's company had done a small amount of business for Behm in the past. Sathren moved for a new trial, asserting that Kennedy's erroneous answer on voir dire was an irregularity warranting a new trial. The trial court initially granted Sathren's motion.

Behm then moved for reconsideration of the trial court's order, and presented additional evidence showing the minimal nature of the business between Behm and Kennedy's company. Behm presented Kennedy's affidavit, in which Kennedy stated that his records showed a single $100 service call to Behm in 1984, over three years before this trial, conducted by a company employee in Rugby. Kennedy's affidavit states that he was unaware of this service call until checking his records after trial, and that he had responded honestly to all questions asked of him during the voir dire. Presented with this new evidence, the trial court reversed its prior order and, holding that no showing of prejudice had been made, denied Sathren's motion for a new trial.

Sathren asserts on appeal that the trial court erred in denying his motion for a new trial. Sathren argues that, had Kennedy disclosed his company's prior business dealings with Behm, he would have exercised a peremptory challenge to excuse Kennedy.

We employ a very limited standard in reviewing a trial court's denial of a motion for a new trial:

"The decision to grant or deny a new trial rests within the sound discretion of the trial court and will not be set aside on appeal unless there is an affirmative showing of a manifest abuse of discretion. An abuse of discretion by a trial court in granting or denying a motion for a new trial is defined as an unreasonable, arbitrary, or unconscionable attitude on the part of the court." Holte v. Carl Albers, Inc., 370 N.W.2d 520, 524 (N.D.1985).

In a markedly similar case, the United States Supreme Court employed the harmless error standard of Rule 61, F.R.Civ.P., in holding that, under the circumstances presented, a new trial was not required by a juror's erroneous answer on voir dire. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). In McDonough, a juror failed to respond when the panel was asked if any immediate family member had ever been injured in an accident. It was later learned that the juror's son had been injured in the explosion of a truck tire. The Supreme Court reversed the Court of Appeals' determination that a new trial was required:

"We have also come a long way from the time when all trial error was presumed prejudicial and reviewing courts were considered ' "citadels of technicality." ' ... The harmless-error rules adopted by this Court and Congress embody the principle that courts should exercise judgment in preference to the automatic reversal for 'error' and ignore errors that do not affect the essential fairness of the trial.

* * * * * *

"To invalidate the result of a 3-week trial because of a juror's mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an...