
    No. 64
    YEITER, etc. v. WEIGMAN
    Ohio Appeals, 3rd Dist., Crawford Co.
    No. 1127.
    Decided Nov. 24, 1926
    841. NEW TRIAL — Where after trial, it is discovered that a juror and defendant are related in that the juror’s mother was a sister of defendant’s wife’s grandmother, it being claimed that failure to disclose this fact was a fraud upon plaintiff’s rights, the court did not err in overruling a motion for a new trial upon that ground in absence of proof of knowledge of this relationship, on part of either the juror or defendant.
    Attorneys — O. W. Kennedy and Edward J. Myers for Yeiter; Gallinger & McCarron for Weigman; all of Bucyrus.
   WARDEN, J!

Charlotte Yeiter, a minor, brought an action by her next friend against George Weigman in the Crawford Common Pleas. Weigman was driving a horse and wagon south along a road in said county, and the plaintiff was riding on the back seat of an automobile driven by. her father, north. The vehicles came together and plaintiff was injured as set forth in her petition.

Judgment in the lower court was for Weig-man. Error was prosecuted and it was claimed that one, H. A. Barth, who sat on the jury and who was one of the nine jurors signing the verdict in favor of defendant, was reloted to said defendant in that his mother was a sister of Weigman’s wife’s grandmother, and it is urged that failure of Barth and Weigman to disclose this fact was a fraud upon the plaintiff’s rights and prevented her from having a trial before a fair and impartial jury. Failure of the court to grant a new trial on this ground is claimed to be error. The Court of Appeals held:

1. It is conceded by plaintiff’s counsel that’ the relationship does not come within the fourth degree of affinity as provided by subdivision 7 of 11437 GC.; but it is claimed that failure of Barth or Weigman to make known the relationship was a fraud on the rights of the plaintiff.

2. There is no evidence in the record tending to prove that either Barth or Weigman knew of the relationship, and there is no authority cited or found which holds that there is a presumption that a person has knowledge of his kin by affinity.

3. In absence of proof of such knowledge on part of either the juror or defendant, the court did not err in overruling the motion for a new trial on that ground.

4. The court charged the jury that if the injury was proximately caused by the joint negligence of the driver of the car and the driver of the horse, the plaintiff was entitled to recover. There was no error in this part of the charge and it is approved.

Judgment affirmed.

Note — Motion to certify overruled. 5 Abs. 59.  