Smith v. Kent

• Decision Date: 17 June 1974
• Docket Number: No. 1828--I,1828--I
• Citation: 11 Wn.App. 439,523 P.2d 446
• Parties: Tracy SMITH, Appellant, v. Jack KENT, d/b/a Jack Kent Dump Truck Service, et al., Respondents.
• Court: Washington Court of Appeals

Page 439

11 Wn.App. 439

523 P.2d 446

Tracy SMITH, Appellant, v. Jack KENT, d/b/a Jack Kent Dump Truck Service, et al., Respondents.

No. 1828--I.

Court of Appeals of Washington, Division 1.

June 17, 1974.

Rehearing Denied July 18, 1974.

Review Denied Oct. 7, 1974.

Miracle, Pruzan & Nelson, Howard P. Pruzan, William F. Nelson, Seattle, for appellant.

Rutherford, Kargianis & Austin, Samuel C. Rutherford, Seattle, Jordan, Britt & Templeman, Dennis J. Britt, Everett, for Jack Kent.

Hackett, Beecher & Hart, John A. Hackett, Seattle, for Utilities Const. and State.

HOROWITZ, Judge.

Plaintiff appeals a judgment on a jury verdict for defendants. The controlling assignment of error concerns the court's refusal to grant a new trial based on a claimed material false answer to a question asked by plaintiff's attorney of a prospective juror during voir dire examination of the jury.

The facts here material are these: Plaintiff, a 20-year-old single woman from California, while vacationing in Washington, was riding as a passenger in the right front seat of a Volvo sports car. While so riding, she was struck by a rock crashing through the windshield. As a result she sustained serious injuries.

The accident occurred on July 15, 1970 on Highway 530 while the Volvo was traveling west from Darrington toward Interstate 5. The Volvo came to a turn in the road and a sign reading 'Truck Crossing.' As the Volvo rounded the corner, traveling in a westerly direction, defendant Kent's truck was pulling onto Highway 530, also traveling in the same direction. The Volvo decelerated until it was traveling 150 to 200 feet to the rear of the dump truck which was simultaneously accelerating. According to plaintiff, she saw a rock fall toward the ground from the top of the bed of the dump truck. The last thing she remembered was the rock traveling in the air toward her. The Volvo driver saw the rock falling, bouncing on the pavement and crashing through the windshield, striking plaintiff in the face and arm, which she had raised to protect herself.

According to defendant Kent's explanation, the rock must have been picked up by the wheels of the truck involved and thrown back when the truck accelerated; the rock then went through the Volvo's windshield and injured the plaintiff. The jury found for defendants and plaintiff appeals.

Plaintiff makes three assignments of error which she argues together. The controlling question presented is whether a new trial should be granted because of a false answer given by Juror George Maude to a material question during his voir dire examination. A further statement of the facts bearing on this question is helpful.

Juror Maude was the eighteenth juror voir dired. He was in the courtroom waiting to be called when, during the voir dire examination of jurors, the trial court explained the nature of the case to the jury, including the claim plaintiff's injuries were caused by a rock falling from a truck. The judge asked general questions of the panel regarding their past employment for heavy construction outfits and roadbuilding. The questions asked during voir dire examination heard by Juror Maude showed the attorneys were interested in the work experience of prospective jurors and their spouses, including their work experience in trucking. Thus, during the voir dire of Juror Micky M. Rairdin, the sixth juror voir dired, he was asked 'Do you have any other work experience?' The juror replied that he had served as a dump trucking supervisor in the United States Army. Thereafter, the juror was extensively examined by counsel for the respective parties concerning his experience with dump trucking. Mr. Rairdin was excused upon a peremptory challenge by defendant. When Mr. Maude was called for voir dire examination, plaintiff had not used her third and fourth peremptory challenges. The court had theretofore granted plaintiff the right to have four peremptory challenges. On examination by plaintiff's counsel, he stated he was a retired sawyer who had worked at that trade for about 40 years. He stated he had worked on a dam in Folsom, California, for about a year, and had a garage business for about a year. He was then asked:

Q. Have you had other work experience, other than being a sawyer and working on a dam and having a garage?

A. No, no other experience. Mostly mills.

Plaintiff passed Juror Maude for cause. Later she exercised her third peremptory challenge with respect to another prospective juror. She did not exercise her fourth peremptory challenge, being satisfied with the jury as constituted.

Following a 10--2 verdict for defendants, plaintiff obtained certain jurors' affidavits. Juror Ollgaard's affidavit stated in part:

That Mr. Maude told me that he had driven 'anything except a school bus.' And he said the rock could have come from the dual wheels and not off of the load.

Later the court, on plaintiff's motion, entered an order permitting Jurors Isle D. Spang and George Maude to testify. For purposes of the question discussed, we need consider only the testimony of Juror Maude. He testified he had told the jurors he had driven everything including a school bus; that he had driven trucks a total of about 4 years; and that he had had a Class H chauffeur's license to drive all types of vehicles in Canada for 10 years. He further testified:

Q. Now, Sir, during the deliberations of the jury, did you express an opinion as to whether or not--the rock that struck Tracy came from the dual wheels of the truck?

A. I did.

Q. And was that statement made at or about the time you had said that you had driven practically every kind of truck, including a school bus?

A. It could have been.

Q. Did you suggest that the tires--truck tires--got smaller--

A. At higher speeds.

Q. At higher speeds?

A. Yes.

Q. Was this based on your truck experience?

A. Yes.

At the conclusion of the testimony, the trial judge denied plaintiff's motion for new trial. Plaintiff's appeal assigns error to the trial court's order denying her motion.

Art. 1, § 21 of the state constitution provides that '(t)he right of trial by jury shall remain inviolate . . .'. The right of trial by jury means a trial by an unbiased and unprejudiced jury, free of disqualifying jury misconduct. That misconduct may consist of a prospective juror's false answer to a material question that either (1) conceals or misrepresents his bias or prejudice, or (2) prevents the intelligent exercise by a litigant of his right to exercise a peremptory challenge or his right to challenge a juror for cause. These rights of challenge are important, substantial rights which serve to protect a litigant's constitutional right of trial by jury.

Voir dire examination enables a litigant to determine whether or not to exercise his statutory right to challenge a juror for cause or to exercise a peremptory challenge. State v. Simmons, 59 Wash.2d 381, 368 P.2d 378 (1962). See generally RCW 4.44; RCW 4.44.140, 4.44.150, 4.44.210. A litigant who has passed a juror for cause nevertheless may wish to exercise a peremptory challenge because he or his counsel 'believes that a juror, because of his life circumstances, would identify too closely with or would dislike the (litigant), the witnesses or other figures in the trial.' Singer, Voir Dire By Two Lawyers: An Essential Safeguard, 57 Judicature 386, 391 (1974). Accordingly, a litigant has the right to rely upon the sworn statements of the prospective juror made during voir dire examination. 'If this were not so, then litigants could never have any assurance of a fair and impartial trial.' Mathisen v. Norton, 187 Wash. 240, 249, 60 P.2d 1, 5 (1936).

The rationale of Washington cases dealing with the concealment by a prospective juror of his bias or prejudice is similar, even if not identical, to the rationale properly applicable to cases involving false answers concerning material matters given during voir dire examination. We therefore believe it appropriate to discuss the rationale of both types of cases. In Mathisen v. Norton, Supra at 245, 60 P.2d at 3, the court states:

The jury is in a sense a branch of the judiciary, and a jury, when accepted, becomes a part of the court. State v. Pepoon, 62 Wash. 635, 114 P. 449; Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993. The jury must necessarily act as a unit, and the misconduct of any juror, actual or implied, which forestalls or prevents a fair and proper consideration of the case, is the misconduct of the jury and vitiates the verdict.

'The right to trial by jury includes the right to an unbiased and unprejudiced jury, and a trial by a jury, one or more of whose members is biased or prejudiced, is not a constitutional trial.' Alexson v. Pierce County, 186 Wash. 188, 57 P.2d 318, 320.

It is jury misconduct warranting a new trial for a juror to give a false answer on a material matter during voir dire examination that conceals information properly requested by a litigant to enable him to determine whether or not to excuse the prospective juror by peremptory challenge, if necessary. See Wright v. Bernstein, 23 N.J. 284, 129 A.2d 19 (1957), strongly approved in State v. Simmons, Supra; Drury v. Franke, 247 Ky. 758, 57 S.W.2d 969, 88 A.L.R. 917 (1933); Texas Employers' Ins. Ass'n v. Wade, 197 S.W.2d 203 (Tex.Civ.App.1946). The existence of concealed bias or prejudice in a juror is not a matter that inheres in a verdict. Allison v. Department of Labor &amp Indus., 66 Wash.2d 263, 265, 401 P.2d 982 (1965); Gardner v. Malone, 60 Wash.2d 836, 376 P.2d 651 (1962); Mathisen v. Norton, Supra. Neither does juror misconduct in giving a false answer to a material question propounded to the prospective juror on voir dire examination inhere in the verdict. Drury v. Franke, Supra; Texas Employers' Ins. Ass'n v. Wade, Supra.

The courts of the country are not entirely agreed on the circumstances that must exist to require a new trial in face of a false or misleading answer to...