Opinion
Decided November 12, 1940.
Jury — Voir dire examination — Privilege to challenge waived, when — Subsequent discovery of juror's disability — Error may not be predicated thereon, when — Evidence — Rebuttal testimony an admission — Admissible without foundation being laid.
1. Failure of counsel to examine jurors as to their qualifications or avail themselves of their statutory prerogatives by objection prior to the impaneling of the jury, constitutes a waiver of the privilege to challenge, and a subsequent discovery of a disability on the part of a juror or jurors after the case is concluded will not constitute a ground on which to predicate error.
2. Testimony introduced for the purpose of rebuttal which tends to prove an admission is freely admissible and requires no foundation to be laid.
APPEAL: Court of Appeals for Butler county.
Messrs. Sohngen, Parrish Beeler and Messrs. Williams, Fitton Pierce, for appellee.
Mr. E.J. Kautz, for appellant.
This case is heard on an appeal on questions of law.
The plaintiff's action was a suit for damages for injuries received in an automobile collision. The defendant denied that he was negligent and filed a cross-petition for damages against the plaintiff.
The case was tried to a jury, resulting in a verdict in favor of the plaintiff, and, a motion for a new trial being filed and overruled, judgment was entered on the verdict.
The specifications of error are limited to two propositions of law:
First. Irregularities in the selection of a jury.
Second. The inadmissibility of certain evidence offered by the plaintiff, and the claim that admission of this evidence was prejudicial to the rights of the defendant.
On the question of the irregularity in the selection of a jury, the record discloses: That after a verdict was returned in favor of the plaintiff and the jury was discharged by the court, the defendant claimed that he then learned that some of the jurors were not the regular ones for the term; that when the venire had been reduced, it became necessary to call other jurors to fill the panel; that the presiding judge called several persons for service in the case in addition to regular jurors; and that these persons, so called, had served as jurors for a period of three consecutive weeks, just prior to the period in which this case was tried.
It further appears that after the panel had been completed and sworn, there were three persons on the jury who had already completed their three weeks' service just prior to this trial.
It appears that throughout the entire trial, counsel for the defendant made no inquiry with respect to any previous service by any of the jurors, nor did he at any time make any objection to any of the jurors, nor did he challenge the array. Counsel claims that he should be excused from this omission by reason of the fact that he was misled by information from the clerk; that he went to the clerk's office prior to the trial and asked the clerks if there were enough regular jurors to try the cause; and that the clerk replied that there would be enough of the regular jurors to try this case.
The shortage of jurors was occasioned by the trial of another case and the other judge calling for jurors. This naturally reduced the number of regular jurors available.
It is contended by the appellee that appellant's failure to object to or challenge any of the jurors in question during the trial, waived any right to do so after the trial was consummated and the jurors' verdict rendered.
Section 11419-51, General Code, provides as a cause for challenge that a person called, not being a regular juror, has served already as a talesman in a court of record within the preceding twelve months.
Section 11419-43, General Code, prohibits the service, as a talesman, of any person who has already served for the statutory period of three weeks. This is also a cause for challenge, but the above sections do not of themselves, make the juror ineligible to serve as a talesman. The prior service is a ground for challenge for cause, or challenge to the array. And if the facts so show, the challenge would have to be sustained, but nowhere is it stated that this right to challenge may not be waived.
In the case of Wilder v. State, 25 Ohio St. 555, the rule is stated in the syllabus:
"Where the court, sua sponte, inquired of the jury, as directed by Section 11 of the Act of 1873 (70 Ohio Laws, 167), without eliciting ground for challenge, and no challenge was in fact made, and no further diligence used to ascertain the ground for challenge, the judgment will not be reversed although the party against whom it was rendered was at the time ignorant of the fact that a juror had served as a talesman within the next preceding twelve months."
It is stated in Kenrick v. Reppard, 23 Ohio St. 333:
"The general rule is, that a party omitting to examine or challenge a juror waives all objections to his competency. To take a case out of this rule, it is not enough merely to show the ignorance of the party, or his disbelief of the disqualification of the juror; and this rule applies as well to jurors summoned upon special venire as to jurors drawn from the box."
In the case of Watts v. Ruth, 30 Ohio St. 32, it is stated:
"To take a case out of this general rule [waiver], it is not a sufficient showing, on a motion for a new trial, that the party, at the time the jury was impaneled, was ignorant of the fact of the incompetency of such person for a juror, and that he believed him to be competent. He must at the proper time have examined the juror touching his qualifications. Nothing short of such an investigation will furnish a showing of reasonable diligence."
The case of Stair v. State, 20 Ohio Law Abs., 170, cited by appellant in support of his proposition is not in point, since in that case, objections and exceptions were reserved throughout the examination of the jury. The jury was sworn over the objections and exceptions of the defendant, thus requiring the defendant to proceed to trial. There, the objection was timely made, but here, a different situation is presented. The defendant sat by, failed to examine the jurors as to qualification, failed to make objection, failed to reserve exceptions, and made no objection to proceeding to trial before the jury was impaneled. Under the decisions, he must be held to have waived any objection, and this point of error is not well taken.
The other point of error raised relates to the admission of testimony. The testimony objected to was that of plaintiff's witnesses, who, by way of rebuttal, testified to the effect that the defendant had made statements at other places and times contrary to his testimony given at the trial. This testimony was objected to on the ground that no sufficient foundation was laid to entitle the plaintiff to rebut evidence given by defendant.
In the case of DeGroodt, Exrx., v. Skrbina, Admr., 111 Ohio St. 108, 144 N.E. 601, 38 A.L.R., 591, the Supreme Court quoted the rule applicable in such cases from 2 Jones on Evidence, Section 236, as follows:
"`It has always been competent to show admissions made by the parties to the record whether those admissions were made while testifying as a witness, or were made upon the streets. Such statements are evidence for the adverse party. If the testimony is of such a character as to constitute an admission of the party, it is not necessary to lay the foundation for its reception, or even to cross examine the party on the subject. The reason for the admission of such statements is both clear and compelling. They are admitted because conduct of a party to the proceeding, in respect to the matter in dispute, whether by acts, speech, or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue. * * * When a party to a civil action has made admissions of facts material to the issue, they are, as a rule, admissible against him.'"
The matter testified to, and objected to, was a statement by the defendant in the case, pertaining to the question of speeding on the part of the plaintiff at the time of the accident. The rule sought to be applied here by the defendant would be pertinent if the matter of the impeachment of a witness were concerned, where ground for the impeachment must be laid. But in this case one of the issues of negligence was the excessive speed on the part of the plaintiff. If the defendant stated out of court that the plaintiff's car was going only fifteen or twenty miles an hour, this might well be considered as an admission, and when he testified on examination that the speed was much greater, his admission would be clearly inconsistent with the truth of his contention as to the fact relative to the issue.
The trial court did not err in admitting this evidence, although introduced by way of rebuttal.
We find no prejudicial error in the record, and the judgment is affirmed.
Judgment affirmed.
MATTHEWS and ROSS, JJ., concur.