
    Cleveland Ry. Co. v. Myers.
    (Decided March 25, 1935.)
    
      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.
    
      Messrs. Payer, Corrigan & Cook, for defendant in error.
   Terrell, J.

Nora Myers brought suit against The Cleveland Railway Company in the Common Pleas Court of Cuyahoga county claiming to have been injured by reason of the negligence of the railway company while she was boarding a street car. The trial resulted in a judgment in her favor. Error is prosecuted in this court by the railway company on several grounds, among which is that of the misconduct of a juror.

The facts out of which this assignment of error grows are in substance as follows:

The case was called for trial, a panel of twelve jurors being seated in tbe jury box. Proceedings were then undertaken to impanel a jury. Tbe trial court first addressed tbe jurymen and made some general statements concerning the issues and the personnel of counsel and the parties. The court explained that this was a personal injury case wherein the plaintiff, Nora Myers, claimed that she received personal injuries through the negligence of the defendant, Cleveland Railway Company, and was asking to be compensated therefor, that it was desired by all to obtain a jury whose members were unbiased, open-minded and free from prejudice, and that this inquiry was to ascertain whether there was anything in the past experience of the members of the panel which would impair their capacity to be perfectly fair and just between the parties in this action. The court further inquired if any of them had any such experience, “where you were injured,” whether it came into court or not, whereupon counsel for the railway company supplemented this inquiry of the court as follows:

“Have you or any relative of yours by blood or by marriage ever had a claim for personal injury or property damage against any person, firm or corporation, including The Cleveland Railway?”

In response to these questions of the court and counsel, the members of the panel, among whom was one named Harrison, remained silent. The jury was duly impaneled and it included Mr. Harrison. Trial resulted in a verdict for plaintiff, in which verdict juror Harrison joined.

Defendant in its motion for a new trial advanced as a cause for new trial several grounds, among which was misconduct of a juryman. It developed upon the hearing of this motion for a new trial that said juror Harrison, some time prior to this trial, was in an auto accident, wherein he suffered severe personal injuries described by him as a “broken neck,” under circumstances where he deemed himself not at fault and another party the cause thereof. Effort was made by defendant, on hearing of said motion for new trial, to show that this accident to Mr. Harrison had a decided prejudicial effect upon his judgment in the deliberations in the jury room and was a cause of bias and prejudice against defendant. The trial court refused to consider such evidence, on the authority of Schwindt v. Graeff, 109 Ohio St., 404, 142 N. E., 736, which approves the common-law rule that a verdict of a jury may not be impeached by the evidence of a member of the jury as to what happened in the jury room.

To decide the question under consideration we do not find it necessary to consider what transpired in the jury room. We conclude that when juror Harrison, in response to the questions put to him, failed to disclose that he had suffered such personal injuries in an accident, defendant by reason thereof was thereby denied a substantial right, the right to challenge him upon “suspicion of prejudice” or, peremptorily, and that this was misconduct materially affecting defendant’s rights.

The statute, Section 11419-52, General Code, provides the right of a party to challenge a juror “on suspicion of prejudice against, or partiality for either party.”

Prejudice is a mental attitude of one which can be determined only from acts or expression of the individual. If the true facts are not disclosed in response to proper inquiries on voir dire examination, no party ever could exercise his right to challenge upon suspicion of prejudice. A party has a right to have all proper and pertinent questions on voir dire examination answered truthfully. The juror might deem the question unimportant and remain silent; the juror might make a false answer or remain silent when he ought to disclose the facts pertaining to himself in answer to a proper question. In any of these events the party litigant, in order to protect his rights, is entitled to the information solicited. If the juror remains mute when he should answer, the effect is the same as a false answer. Surely it is a proper and pertinent question which seeks to elicit the fact whether a prospective juror ever had a personal injury accident himself. It may well affect his mental attitude to the prejudice of one claimed to be responsible for personal injuries to another, but in any event it may establish facts upon which the inquiring party may base a peremptory challenge, as provided for by Section 11419-53 of the General Code. If a truthful answer is not given by the juror, there is no way that a party may determine facts upon which to base a challenge upon suspicion of prejudice, or even peremptorily.

Counsel for plaintiff protest that the initial information which started the inquiry into the fact of a prior personal injury suffered by juror Harrison was the result of information disclosed by a member of the jury because of conversations by juror Harrison in the privacy of the jury room. Counsel therefore claim that all such information gained should be excluded by the court.

Upon the hearing of the motion for a new trial there was testimony of witnesses which disclosed facts outside of the happenings in the jury room. The deposition of juror Harrison himself disclosed that he had had this prior personal injury accident. The deposition of the doctor disclosed that he had treated juror Harrison for such injuries, which were very serious in their nature, and that Harrison had spent some time in a hospital as a result thereof. So there is sufficient evidence of facts, without considering that which occurred in the jury room itself, to disclose that juror Harrison, prior to this trial, was involved in a personal injury accident himself. All of this information was properly presented to the trial court upon the motion for a new trial.

We hold that by the non-disclosure by juror Harrison of such personal injuries to himself defendant was thereby denied a substantial right, and that the trial court was in error in refusing to grant a new trial therefor.

It is our conclusion that the judgment should be reversed and the case remanded for a new trial.

Judgment reversed and cause remanded.

Lieghley, P. J., and Levine, J., concur.  