
    Schreiber v. Roser.
    (Decided March 12, 1935.)
    
      LEO J. SANDMANN for appellant.
    FINLEY F. GIBSON, Jr., for appellee.
   Opinion of the Court by

Chief Justice Clay

Affirming.

Mrs. Katherine Scbreiber appeals from an adverse judgment rendered in an action against G-eorge Noser for personal injuries.

Tbe first ground urged for reversal is that false information given by tbe juror Charles H. Fritschner deprived appellant of tbe opportunity to challenge him as a juror. On their voir dire examination tbe jurors were asked, and tbe juror Fritschner made no answer to, tbe following questions: “Dues any member of this panel know tbe plaintiff in this action?” “Does any member of the panel know any of tbe facts concerning this action?” “Does any member of tbe panel know any reason why be can nut sit in this case as a juror and render a fair and impartial verdict?” Tbe affidavit of Bland Scbreiber, a son of appellant, discloses tbe following situation: He was tbe last witness to take tbe stand, and when be did so be recognized Mr. Fritschner and recalled that be bad bad some transactions and dealings with Fritschner during which be on tbe 24th day of September, 1932, detailed and outlined to him all tbe facts of tbe accident which bis mother bad bad, and which resulted in the lawsuit against Noser. Affiant was to rent an apartment from Mr. Fritschner, but was compelled to forego tbe renting' and asked Mr. Fritschner to let him out of tbe lease when, it became necessary for affiant to help support bis mother. Affiant was married and lived separately from bis mother. He went to Mr. Fritschner to obtain a release of tbe rental contract, and as a ground for bis asking to be released set out tbe details of bis mother’s accident and that be would be compelled to assist in tbe support of bis mother while she was incapacitated, and thereafter to pay off a loan which tbe affiant negotiated. He further alleges that Fritschner knew tbe facts of tbe case, and knew tbe parties, at tbe time be went in tbe jury box to sit on the panel. On tbe other band, Fritschner says in bis affidavit that be never bad any conversation •with Bland Schreiber regarding the facts of the case or the rental of any apartment which he owned, and denied that Bland Schreiber or any one ever told him of the facts or that he knew any of the facts concerning the case prior to the time of the trial. He also added that he was not influenced by any facts -other than the evidence produced on the trial.

It is the rule that, where a juror gave false answer or no answer to a pertinent question on voir dire examination, a litigant learning the true facts after verdict is entitled to a new trial without showing that juror’s conduct accounted for verdict, though false information was given unintentionally and there was no bad faith. Drury v. Franke, 247 Ky. 758, 57 S. W. (2d) 969, 88 A. L. R. 917. Whether Fritschner’s failure to answer the questions propounded on the voir dire examination, considered in connection with Bland Schreiber’s affidavit, would have made out a case of false information requiring a new trial if the Schreiber affidavit had not been denied, we deem it unnecessary to determine. The case is one where the facts stated in the supporting affidavit were all denied by the juror.. The ease with which it may be shown that a juror was guilty of furnishing false information makes it necessary to apply the rule only in clear cases, and to rely largely upon the judgment of the circuit court, and where, as here, the evidence is equiponderant, the action of the circuit court in refusing a new trial will not be disturbed.

There is the further - contention that the verdict is flagrantly against the evidence. According to Mrs. Schreiber, Mr. Roser to-ok her to the home of Mrs. Kistner about 7 p. m. June 10th. Some time later Mr. Roser agreed to drive her home. At that time his car was facing Eastern Parkway, and was situated on an incline. He asked her to go back and see if his garage doors were open. The garage is on the back part.of the lot. She went back to the garage and found the doors were open. Going back she walked in the street. She walked halfway in the middle of the street! At that time the engine in the car was running. Her account continues as follows:

“As I got — walked up to get into the car, I had to step across to get on the grass to get -on the side I was supposed to get in. Just as I got in the center of the car, the car backed and hit me, and I realized it was going to hit me and I slapped both hands on the back of the car, and by that time I was knocked down. When I picked myself np 'out of the gutter, I pulled myself over to the yard and sit there and Mr. Eoser come over and asked me — he said my goodness, I did not mean to hurt you. I said I don’t know, but I am hurt. I was so excited I could not talk for a minute, I don’t think.
“53. Did you fall — did you stumble and fall or were you knocked down? A. No, sir; the machine hit me. The machine knocked me down. I realized he was going to hit me when I heard the machine. I know I put both hands up; that, is the last I knew and I was on the ground.”

She further testified that the accident happened on a Friday night, but she never saw the doctor until Sunday afternoon. When she reached home her daughter and brother helped her upstairs. The doctor came and wrapped her foot in adhesive. Monday morning she and Mr. Eoser went to see Dr. Arnold, and he put her foot in a cast. Dr. Herrmann made an X-ray of her foot. On cross-examination she stated she was right against the car when the car started. Dr. E. L. Henderson testified that Mrs. Schreiber suffered a simple fracture of the metatarsal bone, and the injury was one that would cause considerable pain. In his opinion he did not see how the accident could have been caused by a _ person attempting to step up on the curbing and slipping the foot off. When he examined Mrs. Schreiber’s foot he found no cut or lacerations of any kind. There was a bruise and quite a lot of swelling. Dr. Arnold testified that Mrs. Schreiber had a fracture at the head of the fifth metatarsal bone, and also had a considerable swelling of the foot. It was possible for the injury to be caused by a misstep on the curbing, but was rather unlikely. Dr. Herrmann, who took the X-ray, also testified that it was possible for a break or fracture of the kind in question to be caused by the slipping of the foot, but one would have to have extreme twisting or turning of the ankle with the weight coming down at that angle.

On the other hand, Mr. Eoser testified that he was sick the day of the accident. Mrs. Schreiber was out at Mrs. Kistner’s and he volunteered to take her home. When they came out of the Kistner house he got into the car. Mrs. Schreiber volunteered to go and see whether or not the garage doors were open. He continued his testimony as follows:

“A. I can’t remember backing it, because I don’t see why I would back it. I was facing Eastern Parkway and we always went that way.
“15. You were facing then south, is that it? A. Pacing south .and I was on the West side of Norris.
“16. What was the first you knew about Mrs. .■Schreiber having any injury? A. I did not know anything happened until I heard her hand hit the back of the car like that. I looked out and she said I knocked her down.
“17. Was your car moving then? A. I don’t think it was — no, sir. If I did move the car, I never moved it at the very most six inches, if I moved it that much.
“18. Was your car in reverse? Did you have it reversed? A. No, sir.
“19. Is there any incline there? A. There is a slight incline — yes, sir.
“20. That runs northwardly, you mean? A. Yes, sir.
“21. And also south? Does it run south, too? A. I always stayed above that incline.
“22. I see. A. If you get above that incline to the parkway, your car is inclined to roll back. It is a two-way drain there. This way it drains to the Parkway, and on the level there it drains to the rear. There is a catch basin at the back there.
“23. Were you on the side of the drain that your car would run towards Eastern Parkway? A. Go back that way, because I always stayed on that side cn account if the car would roll, it would roll back.
“24. Were you ever with Mrs. Schreiber prior to June 10, 1932, when she had any trouble with her foot or a fall at any time? A. I believe I remember one time she told me that she fell out on the Bardstown Road.
“25. With this same foot? A. Well, that I don’t know — if it was the same foot or not.”

On cross-examination he stated that he had the car in neutral, and that having the car in neutral and on an incline the vibration of the car when the engine was started would have a tendency to start the car rolling. Dr. Raymond M. Evans testified that he examined the X-ray and found that the smallest bone in Mrs. Schreiber’s foot next to the toes was fractured about half an inch from the base of the bone; that usually when you have a fracture caused by direct force there is an open wound or some external evidence of injury. Judging from the fact that there was no evidence of external injury except from swelling-no breaking of the skin, no discoloration — he judged from other fractures he had seen and from the authorities that the force causing the fracture was indirect.

It is claimed that there is practically no contradiction of appellant’s testimony. The argument is that appellee was plainly negligent, in that he backed his car without looking to the rear to see if any person would be affected by the movement, and without indicating in any way his purpose to do so, and that as a result of this movement appellant was injured. Appellant’s account of the accident does not indicate with any degree of clearness how it occurred. She does not say that one of the wheels of the car ran over her foot, nor does the character of the injury indicate that such was the case. Her sole claim is that the car backed and knocked her down. She does not say that her ankle turned or was twisted in any way, and we are at a loss to see how the alleged movement of the car could have caused the fracture of the bone in her foot. On the other hand, appellee, who appears to have testified very cautiously, says that he did not think his car was moving at all, and that if it did move it moved only six inches at the most. Indeed, as appellee was waiting for appellant to join him and take a seat in the car, it is not perceived why he should have started the car up, or have permitted it to move in any way before appellant got into the car. Looking at the case in the light of the uncertainty as to the movement of the car, as well as the uncertainty as to whether appellant’s injury could have been caused by the alleged movement, we are constrained to hold that the question of liability was for the jury, and that it cannot be said that its finding is flagrantly against the evidence.

Judgment affirmed.

Whole court sitting.  