Springdale Park v. Andriotis, A--242

• Decision Date: 01 April 1954
• Docket Number: No. A--242,A--242
• Citation: 30 N.J.Super. 257,104 A.2d 327
• Parties: SPRINGDALE PARK, Inc. v. ANDRIOTIS. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 257

30 N.J.Super. 257

104 A.2d 327

SPRINGDALE PARK, Inc. v. ANDRIOTIS.

No. A--242.

Superior Court of New Jersey Appellate Division.

Argued March 15, 1954.

Decided April 1, 1954.

John T. Madden, Newton, for plaintiff-appellant (William Martin Cox, Newton, on the brief; Dolan & Dolan, Newton, attorneys).

Willis H. Sherred, Newton For defendant-respondent (Morris, Downing & Sherred, Newton, attorneys).

Before Judges EASTWOOD, JAYNE and CLAPP.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

The plaintiff-appellant (hereinafter referred to as 'tenant'), and defendant-respondent (hereinafter referred to as 'landlord'), entered into a written lease for premises consisting of two buildings, one a tavern and restaurant, and the other a dwelling house. One of the provisions of the lease required the landlord to keep the demised premises in good repair at all times during the term thereof.

The tenant instituted an action against the landlord in the Sussex County District Court to recover the sum expended by it in making certain repairs, alleging that the landlord had violated the covenant to repair, notwithstanding its demand for certain necessary interior repairs to be made.

The action was tried by the court and a jury, resulting in a divided jury verdict (10 to 2) of no cause of action. The tenant appealed from the ensuing judgment.

It is the tenant's contention that: (1) the verdict should be set aside and a new trial granted because it did not have a fair trial before an impartial jury; (2) the verdict was against the weight of the evidence; (3) the court erroneously admitted testimony as to certain repairs made by the landlord, other than those involved in the litigation; and (4), the court erred in admitting incompetent opinion evidence by an alleged expert.

In our opinion, the only question requiring any extensive discussion is that heretofore denominated as the first ground of appeal.

The tenant contends that when the jurors were interrogated as to whether they knew the parties or had any personal knowledge of the subject matter of the suit, or whether there was any other reason why they might be subject to challenge, two jurors failed to disclose the fact that they had been members of a jury in a previous case between the same parties, involving the same covenant; that these two jurors voted in favor of the verdict returned in the case at bar; and another juror failed to disclose that her husband had also sat on the jury in the trial of the prior action.

The jurors were not examined separately on their Voir dire, but the interrogation was made to them as a unit. To present the picture as it existed at the trial, we quote from the record the omnibus question submitted to the jurors and the colloquy connected therewith, viz.:

'Mr. Madden: Ladies and gentlemen, this suit is a suit for an alleged violation of a covenant to repair. The suit is by the Springdale Park Corporation, which is a tenant of John Andriotis, and the tenant is suing the landlord, claiming that the landlord has violated his agreement to keep the premises in good repair. Are any of you familiar with the situation between these two parties with reference to these repairs? Does anybody have any personal knowledge of it? Have any of you any personal knowledge of the parties? I think you are all from around here, and I know that a good many of you know me, and you know Mr. Sherred, and probably know Mr. Andriotis, and perhaps know George Tsitsiragos, the president of the Springdale Park Corporation. Do any of you know the parties, either Mr. Andriotis or Mr. Tsitsiragos? Anyone at all? Mr. Kymer, you do? Do you feel that your knowledge of these parties is such as to prejudice your verdict that might be rendered in this case?

'The Juror: No, I don't think so.

'Mr. Madden: In other words, you could decide it fairly according to the evidence, regardless of your personal knowledge?

'The Juror: I do, sir.

'Mr. Madden: I assume some of you, without my knowing, may perhaps be clients of Morris, Downing and Sherred. Are any of you clients of theirs at the present time, or if you are would that influence you in your verdict at all? Would the fact that this relationship may exist between attorney and client, or is there any other reason whatever why any of you feel that you couldn't decide this case according to the evidence here, regardless of personal knowledge of parties or attorneys or otherwise? Is there any reason whatever? If there is, I wish you would so indicate now, since we would like to have the verdict rendered according to the evidence.

'Satisfactory to us, your Honor.

'Mr. Sherred: The defendant is satisfied.

'(The jury was thereupon duly sworn.)'

The statute and the rule permitting an examination of a prospective juror as to his qualifications are N.J.S. 2A:78--4, N.J.S.A., and R.R. 4:48--1. N.J.S. 2A:78--4, N.J.S.A., provides:

'Upon the trial of any cause, civil or criminal, all parties may, within the discretion of the court, question any person summoned as a juror, after his name is drawn from the box and before he is sworn as a juror, and without the interposition of any challenge, to elicit information for the purpose of determining whether or not to interpose a peremptory challenge, and of disclosing whether or not there is cause for challenge. In all cases in which a death penalty may be imposed, the examination as to competency shall be under oath, but in other cases it shall be made without putting the juror under oath. Such questions shall be permitted for the purpose of disclosing whether or not the juror is qualified, impartial and without interest in the result of the action. The questioning shall be conducted under the supervision and control of the trial judge and in open court.'

R.R. 4:48--1 provides:

'The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper.'

Ballentine's Law Dictionary (2d Ed. 1948), defines Voir dire as follows:

'To speak the truth. The oath is so called which is administered to a prospective juryman or a witness as a preliminary step immediately prior to an examination of him relative to his qualifications as a juror or a witness.'

See also, Am.Jur., Jury, secs. 104, 107 and 108, pages 635, 636 and 638. That a party to litigation may examine into the qualifications, attitudes and inclinations of jurors, before they are impanelled and sworn to try a case, it being a necessary incident to the practice of challenging, is unquestioned. It is only by such an examination that the information or suspicion to constitute a basis for intelligent and practical exercise of challenges to accomplish the end desired--exclusions from the jury of those who would act from prejudice or interest or without qualifications to judge soundly--may be discovered.

'The usual practice is to put those jurors who have been called, into the jury box, on their voir dire or oath to tell the truth, and then for counsel or the court to question them. Counsel challenges when he thinks that cause is apparent. The court either sustains the challenge, tells the challenged juror to step aside, and another juror is called or the court overrules the challenge.'

31 Am.Jur., Jury, sec. 104, p. 635. It is the settled rule that for complete knowledge of all material and relevant matters essential to a...