Schwartz v. Minneapolis Suburban Bus Company

• Decision Date: 01 July 1960
• Docket Number: Nos. 37788,37789,s. 37788
• Citation: 258 Minn. 325,104 N.W.2d 301
• Parties: Laura M. SCHWARTZ, Respondent, v. MINNEAPOLIS SUBURBAN BUS COMPANY, Appellant. Albert SCHWARTZ and Hazel Schwartz, Respondents, v. MINNEAPOLIS SUBURBAN BUS COMPANY, Appellant, David Schwartz, Respondent.
• Court: Minnesota Supreme Court

Page 301

104 N.W.2d 301

258 Minn. 325

Laura M. SCHWARTZ, Respondent, v. MINNEAPOLIS SUBURBAN BUS COMPANY, Appellant.

Albert SCHWARTZ and Hazel Schwartz, Respondents, v. MINNEAPOLIS SUBURBAN BUS COMPANY, Appellant, David Schwartz, Respondent.

Nos. 37788, 37789.

Supreme Court of Minnesota.

July 1, 1960.

Syllabus by the Court

1. Where, after rendition of a verdict, it appears that a juror's untruthful answering of questions put to him on a voir dire examination may have prevented a fair trial, the better practice is to take the matter up with the trial court so that the juror may be examined in the presence of counsel for all parties and the court under proper safeguards and a record made of the examination that will adequately present the matter to this court on appeal.

2. Where there are a number of errors in the trial of a case that, taken together, may have prevented a fair trial, justice may require a new trial.

Meagher, Geer, Markham & Anderson and O. C. Adamson and Manson Reedal, Minneapolis, for appellant.

Nemerov & Perl, Minneapolis, for respondents.

KNUTSON, Justice.

These cases arise out of an automobile accident which occurred at the intersection of Seventy-third Street and Humboldt Avenue South in the city of Minneapolis. Defendant David Schwartz was traveling in a southerly direction on Humboldt Avenue. In his car as passengers were his wife, Laura Schwartz; his brother, Albert Schwartz; and Hazel Schwartz, the latter's wife. Defendant Minneapolis Suburban Bus Company's bus was proceeding easterly on Seventy-third Street, a through street. The bus and car collided in the southeast quarter of the intersection. All the passengers in the Schwartz car were injured.

Albert Schwartz and Hazel Schwartz brought action against David Schwartz and the bus company; Laura Schwartz brought action against the bus company alone, she being unable to sue her husband, David Schwartz. All plaintiffs recovered verdicts--Albert and Hazel against both defendants, and Laura against the bus company. The trial court denied the alternative motion made by the bus company in the Laura Schwartz case and granted the motion of defendants in the other case unless plaintiffs consented to a reduction in the verdicts. Plaintiffs did so consent. Defendant bus company appeals from the order denying its motion for a new trial in both cases. Defendant David Schwartz did not appeal.

Defendant bus company made a second motion for a new trial on the same grounds as set out in its first motion and on the further ground that subsequent to the actions here involved, in an action brought by a passenger of the bus for injuries received in the same accident, the jury returned a verdict for the bus company. The court denied the motion, and defendant bus company appeals from this order also.

1. Several errors are assigned. In an opinion heretofore filed, we held that defendant bus company was entitled to a new trial because of errors committed in the voir dire examination of a member of the jury. Being of the opinion that there may have been an error in this respect, we granted a rehearing, and now, after such rehearing, we withdraw the opinion formerly filed and file this in place of it.

With respect to the error upon which the new trial originally was granted, it appears that on the voir dire examination of the jury one John Herbert was asked if he could be a fair and impartial juror, and he answered in the affirmative. Attorneys for both defendants stated in affidavits that Herbert was also asked whether he or any member of his family had been involved in an accident and that his answer was in the negative. One of plaintiffs' attorneys, in a counteraffidavit, stated that Herbert was not asked this question. The trial court, in a memorandum, stated that it had no independent recollection as to whether or not the question was asked.

After the trial, an investigator for defendant bus company interviewed Herbert and took a statement from him from which it appears that about 4 years prior to the trial of these actions Herbert's daughter and her husband, while passengers in a cab, had been injured in an accident only a short distance from the place of the accident here in question. After litigation, they recovered some damages. In his sworn statement Herbert was asked:

'Q. Do you think that your daughter's accident influenced you in any way--did you have her accident in mind?

'A. All the time.

'Q. During the course of the trial?

'A. All the time, yes.

'Q. Having in mind your daughter's accident and all the circumstances around that during the hearing and deliberations on this case, do you think you were at all influenced in your decision in this case by your daughter's accident?

'A. Well, I was; I could say yes, I suppose. * * *

'Q. With your daughter's case in mind--

'A. Yes.

'Q. --you would favor the plaintiffs in this case, too, to a certain extent?

'A. Yes.'

He stated further that he felt that the damages awarded his daughter and her husband were inadequate.

Whether Herbert was asked the question involved depends largely on who is correct in his recollection of the facts. We believe that the inconsistency between the affidavits of attorneys for defendants and that of plaintiffs' is in all probability due to an inaccurate recollection of what transpired on the part of one or the other rather than to a...