Summary
In Pearson, 148 Ohio St. 425, 36 O.O. 77, 76 N.E.2d 67, paragraph two of the syllabus, this court held that whether a party is prejudiced by the fact that a juror who sat on the case had failed to disclose material information in response to a question on voir dire is a question for the sound discretion of the trial court, to be reviewed by the appellate court consistent with G.C. 11364, the statutory predecessor to Civ. R. 61's harmless-error rule.
Summary of this case from Grundy v. DhillonOpinion
No. 30940
Decided November 12, 1947.
Appeal — Court of Appeals affirmed judgment as to one defendant — Overruling of plaintiff's motion to certify record to Supreme Court — Final disposition of part of judgment pertaining to such successful defendant — Supreme Court later allowed unsuccessful defendant's motion to certify record — Judgment in favor of successful defendant not reviewable by Supreme Court — Negligence — Voir dire examination — Inquiry whether prospective jurors or relatives involved in accident — Prejudice to party by jurors sitting in trial, without disclosure — Question to be determined according to sound discretion of trial court, when — Abuse of discretion by trial court reviewable, how — Section 11364, General Code.
1. Where a Court of Appeals reverses the judgment of the trial court as to one defendant and affirms as to the other defendant, the overruling of a motion of plaintiff to certify the record seeking a reversal of the judgment of the Court of Appeals in favor of the successful defendant is a final disposition of that part of the Court of Appeals' judgment pertaining to such successful defendant and the allowance of a motion to certify filed by the unsuccessful defendant does not bring to this court for review the judgment of the Court of Appeals in favor of such successful defendant in the Court of Appeals.
2. Where prospective jurors on voir dire examination in a personal injury case remain silent on the subject of accidents or claims when inquiry is made as to whether any prospective juror or any relative or member of his family had been involved in an accident or had made any claim in respect of an accident, whether a party is prejudiced by the fact that such juror sat in the trial of the case without disclosure, is a question to be determined according to the sound discretion of the trial court when the propriety of the participation by such juror is properly raised. Whether the trial court has abused such discretion is to be determined by a reviewing court in accordance with the terms of Section 11364, General Code.
APPEAL from the Court of Appeals for Cuyahoga county.
Plaintiff, Pearson, brought an action against The Gardner Cartage Company, Inc., and The E. F. Hauserman Company as joint tort-feasors.
At the close of plaintiff's case the trial court granted the Hauserman company's motion which the parties have treated (and will be hereafter referred to) as a directed verdict in favor of the Hauserman company. At the close of all the evidence the jury returned a general verdict in favor of the Gardner company.
In support of a motion for new trial Pearson submitted depositions of several of the jurors who it is claimed failed to disclose certain accidents and claims. These depositions disclose the following:
Juror Cashman was asked whether her daughter had ever had an automobile accident. Her answer was:
"I don't remember, but some years ago somebody bumped into her out on Superior street, * * *. Well, I don't remember, it's such a long time ago. It must be at least — let me see, that was before her baby was born. She was pregnant at the time. It must be 17 years, I'm sure. * * * I think it was a lady that bumped into her. I don't remember very much about it, I'm sure. I would have to get in communication with her in order to get the details.
"Q. Do you recall whether or not a claim was made? Do you have any knowledge as to whether a claim was made by her against the man or woman who drove the car? A. I couldn't say, I'm sure. I think it was some kind of a settlement, but I don't just remember what it was, I'm sure.
"Q. Do you recall how much money, if any, was paid in the settlement? A. I couldn't say.
"Q. Do you know whether she was represented by a lawyer or not? A. I think she was.
"Q. Who was the lawyer? A. I think — let me see — Zimmerman, Attorney Zimmerman.
"Q. Was there a law suit filed for her? A. I don't think so.
"Q. Was it settled out of court? A. I really don't remember. To tell you the truth, I just don't remember. I do recall she did have a slight accident, but I think Attorney Zimmerman was her attorney, and getting Attorney Zimmerman through, I think it was her doctor, Dr. Wheeloch.
* * * * *
"Q. Did she have any broken bones? A. Oh, no; I don't think so. I don't remember about the case at all. It was a slight thing, and I really didn't remember it ever happened till you brought it up.
* * * * *
"Q. Let me make this suggestion: Isn't it a fact that you yourself filed a lawsuit in your own name because of the damages? [to the car used by the daughter] A. I never filed no lawsuit.
"Q. You didn't? A. No, sir. If that was done, it was done without knowledge to me.
* * * * *
"Q. Actually wasn't it your automobile and wasn't the repair bill $732.17, and didn't you file a lawsuit against Myer Flock of Geneva, Ohio, in your own name? A. I never filed that.
"Q. And didn't you sign it yourself and swear to it? A. I didn't file that. Might have been my husband, but I never did it.
* * * * *
"Q. The name signed to that petition down here is Frank Cullitan as your lawyer. Do you remember that? A. Yes, I do.
"Q. Frank Cullitan represented — A. See, I had forgotten all about that, Sir.
"Q. Frank Cullitan filed the lawsuit on your behalf, didn't he? A. Now I remember. It was the damage done to my car.
"Q. It was your car, wasn't it? A. Yes. Now I remember.
"Q. And what happened to that lawsuit? Was it tried or settled or what? A. I think Attorney Cullitan settled it out of court, and I remember it was just the damage to the car was paid. We received no money. The garage got the money, and Attorney Cullitan I think took $500 himself, or something like that, and the damage to the car was that amount.
"Q. You did collect your repair bill yourself? A. I think it was paid to the garage.
* * * * *
"Q. And how much was paid to her [the daughter] because of the personal injuries? A. Nothing. It was only the damage paid for the repair of the car. She received nothing.
* * * * *
"Q. Do you remember now that you — A. I didn't remember that at all, sir. That really was out of my mind.
* * * * *
"Q. You recall, don't you, that I said to you that many times trials were set aside because people didn't tell us about small accidents? A. Well, I'll tell you the truth, I never thought of it at that time.
"Q. Do you remember my saying to you and the rest of the jurors: 'Is there no one left on the panel who has had the experience of even collecting so much as a twenty-five dollar bill, either you or your relatives, or your immediate relatives and family for an accident?' Do you remember my asking that? A. About that there.
"Q. You remember my asking about that general subject? A. I remember that.
"Q. And you didn't remember this at the time? A. You just brought it to my mind; in fact, I didn't have anything to do with it."
Sometime thereafter the deposition of Margaret Close, daughter of Cashman, was taken and it was developed that the accident referred to in the deposition of the mother occurred with the father's car which was in the name of the mother who did not drive. The daughter testified that she received no money for her injuries received in that accident. In the daughter's deposition the following appears:
"Q. I see. Now, you said there had been another accident? A. Yes; about six — I think five or six years ago. I was going into Gold's Fruit Market on Superior and I slipped on a slimy beet leaf or celery top or something, and down I went, and I couldn't move.
"Q. And what happened to you? A. Fractured pelvis bone, but I didn't know what happened. I was embarrased and couldn't get up.
* * * * *
"Q. How long were you at the Cleveland Clinic? A, Six weeks or seven weeks, but I laid in bed for three months at home. You know, it costs money in the clinic. Dr. Dixon took care of me there.
* * * * *
"Q. Where were you living at that time? A. Same address. I have never moved.
"Q. And where was your mother living at that time? A. She was downstairs.
* * * * *
"Q. And who cared for you at home? Your mother? A. My mother — I have my mother and two daughters — they take care of me."
The daughter testified further that a settlement was made out of court, and then she was asked and answered:
"Q. And did your mother have anything to do with filing that claim? A. Oh, no, my mother never had anything to with my claims.
"Q. No. I don't mean hers, but did she give you any advice or counsel about these claims? A. No; never a word.
* * * * *
"Q. But did she know that you had made the claim? A. Well, I spoke lightly of it; that is all. We don't go into all our business, if we do live in the same house.
"Q. Those are the only two accidents that have happened to you? A. Yes."
In the deposition of juror Meehan it was disclosed:
"Q. There were some questions put to each of the members of the jury in the Pearson case with reference to accidents that they may have had or their relatives, and I want to ask you now: Is it true or is it not true that in your experience as a boy you had any accidents or any kind whatever? A. Yes. I had a broken elbow.
"Q. When was that? A. When I was about 12 years old, I guess.
"Q. And how was that sustained? A. Falling from a tree.
* * * * *
"Q. Were you taken to the hospital or taken care of at home? A. Hospital.
* * * * *
"A. I remained there maybe a week or two weeks.
"Q. Are you able to tell us what year that happened, about when? A. Must have been around 1922.
* * * * *
"Q. Is, it true or is it not true that you have had any accidents since then? A. Yes. I had the tip of my finger smashed.
"Q. BY. whom, and when? A. It wasn't by anybody. It was myself.
"Q. And how long ago and when and where? A. This was about, 1933, I think. It was in the basement of the house I live in.
* * * * *
"Q. Was the joint amputated at the Emergency Clinic? A. Yes.
* * * * *
"Q. Is it true or is it not true there have been other accidents you have had? A. Yes. Just lately I had a cut on my eye.
"Q. I am not interested if it's since the trial, of course. A. No, it was prior to that. It was in October.
"Q. October of 1944? A. Yes.
"Q. And what was the occasion when you sustained that accident? A. I was fixing a cord on a lamp, and I Jerked it off the table, and I had an ash tray on the floor, and the base of the lamp hit the ash tray and the glass shattered.
"Q. And as a result you had this cut over your right eye which has left quite a scar over the eyelid and the upper portion oft the fleshy part of the eye? A. That's right.
* * * * *
"Q. In addition to those accidents, is it true or is it not true that you have had some accidents with your automobile? A. Yes.
"Q. Let's start out with the first one. When was that? A. You mean that involved damages?
"Q. Well, any accident which you participated either as a passenger or as a driver, in which there was any damage whatever, personal damage or property damage. A. The only one I recall is one of property damage.
"Q. When was that? A. Must have been around 1929, I think.
* * * * *
"Q. And how much damage was done to your car, and how much was done to the other car? A. I don't know. I think I had a bent fender and a flat tire, and I had insurance, liability insurance, and I don't know just what settlement was made.
* * * * *
"Q. Let me refresh your recollection. Did you not receive a communication which you turned over to your insurance company? A. That I don't remember either.
"Q. And can you tell us when that was, approximately? A. I think it was around 1928 or '29.
* * * * *
"Q. Is that the only accident which you have any recollection on? A. Yes.
* * * * *
"Q. Has your wife or any of your immediate family, your, parents, at any time made any claim or had any accidents to your knowledge? A. No, not to my knowledge.
* * * * *
"Q. Again I want to press that question. You say now you have told us about all the accidents you have had? A. All that I remember, and I have never had a suit against me or ever brought suit against anyone else.
"Q. There was a claim made against you because of this automobile accident, wasn't there, which your insurance company settled for you? A. There was no claim against me. It was a claim for damages which there was no suit against me, or judgment.
"Q. There was a claim made against you which your insurance company paid? A. There was.
"Q. And do you recall how much that payment was? A. No."
Juror Essick was asked:
"Q. Mrs. Essick, is it true or is it not true that you personally have ever had any accidents whatever? A. I haven't.
"Q. None at all? A. I don't know what you mean by 'accidents.' I have been in an automobile accident several times 20 years ago.
"Q. That is what I was coming to. When was the first one of those? A. I can't remember. It was so long ago. I would say 20 years ago.
* * * * *
"Q. And you say it was damaged quite badly. Are you able to tell us something about the extent of the damage? A. No, I don't know. I don't know what happened to the car or anything about it. There wasn't any lawsuit, I know.
"Q. Was there any claim made? A. No. I'm sure of it.
"Q. Did Mr. Butzman make a claim for his damage to the automobile? A. I really couldn't tell you that. I don't know.
"Q. You didn't receive anything for your injuries? A. No, no compensation whatsoever.
"Q. And made no claim whatever? A. No.
* * * * *
"Q. I think I asked you, but it slips my mind. Was this in the daytime or nighttime?" (Italics ours.)
On another occasion the depositions were taken of Juror Mikula and three others. One deponent, a medical record librarian, testified that juror Meehan was admitted to the hospital July 19, 1920, and discharged August 4, 1920. On cross-examination this deponent was asked:
"Q. From the record and from the X-ray, William Meehan, at the time of this accident on July 19, 1920, was eleven years old; is that correct? A. That is what the record states.
"Q. And the record states he fell from a tree that morning? A. That is right."
Another record librarian testified to an accident record of Juror Meehan. The date was October 7, 1944. The record shows that he was not admitted to the hospital; that he was treated for a "jagged laceration of the right upper eyelid, an open laceration of the right lower eyelid, with marked hematoma and ecchymosis; injection of the right eye"; and that Meehan had told them "a lamp fell cutting right eye, lower and upper lid."
Another deponent, a clerk of St. Vincent's Charity Hospital, testified in respect of Mikula's hospital record. It was disclosed that Mikula was admitted to the hospital on February 16, 1927, and discharged on March 9, 1927. The record further shows that "the present illness was 'the patient fell off a 40-foot pole this morning. Was not knocked unconscious.' * * * The final diagnosis was a scalp wound and fracture of olecranon."
Mikula was asked and answered:
"Q. Do you recall some conversation being had prior to the time that you were sworn in about whether or not you had had any prior accidents? A. No, I don't recall of that.
"Q. Do you recall the judge asking you whether you had had any prior accidents? A. No, I don't.
"Q. Well, have you had any accidents? A. Well, just a minor case. That's all."
Asked to tell about that one, he answered:
"Just going out through the country or the county, and out on a farm, speeding along, blowing a tire, as near as I know of.
"Q. Were you injured in that? A. Not to amount to anything, no."
Asked if he recalled that on September 14, 1926, he had an accident while working for the illuminating company, his answer was "No." He was then asked:
"Q. It happened at one p. m. You were picking up a pole when you felt a pain in your back. Mr. Bauer was your foreman. Do you recall that claim? A. Well, you get minor strains like that quite often.
"Q. O. K. As far as your recollection, you have no recollection of that at all? A. No."
Asked if he recalled that on March 14, 1928, while unloading poles he dropped one on his toe, his answer was "No." Asked if he recalled burning the thumb of his left hand on January 17, 1929, he answered: "Yes, I remember that." Asked how long he was laid up on account of the burn on his thumb, he answered: "Two hours; the rest of the afternoon."
"Q. You went right back to work, you think? A. Well, they gave me a rest period of three days to quiet my nerves from the burn. That's all I can tell you."
Asked if he recalled an injury to his back on October 31, 1932, caused by stepping from a pole to a tree when his foot slipped causing him to fall to the pavement, Mikula recalled this accident and as to the extent of the injuries, testifying:
"A. Well, not injuries; just checking on minor injuries to see whether I hurt the spinal column, is all, and that was all there was to it.
"Q. You had some pain in your back, but no broken bones or torn ligaments, or anything? A. No.
"Q. Do you recall how long you were incapacitated from that accident? A. I couldn't tell you."
Asked how many times he had been in Charity Hospital he answered: "Twice." Asked as to the occasion of the second time, he answered: "I had fell off a pole once, and I was taken there. My safety belt broke on me.
"Q. When your safety belt broke. Those were the two occasions. This occasion around about November 1, 1932, or October 31, 1932, was one time, and then another time? A. That is right.
"Q. Twice. Do you recall an injury or an accident that you had on September 19, 1933? A. 1933?
"Q. Digging bar slipped from your hands which were full of mud, and hit your toe? A. Yes.
* * * * *
"Q. How long were you incapacitated from that? A. Just down to the dispensary and look at it and go back to work.
* * * * *
"Q. Now, do you recall any accident in September 3, 1925, at Gates Mills when you were helping snake a pole with the tractor when the pole rolled over and caught you on the foot? Do you remember that one? Mr. Morris was your foreman at that time. A. Yes.
"Q. Were you laid up much on that occasion? A. Well, how do you mean, laid up?
"Q. Did you have any medical attention or go to a hospital? A. No; no treatments at the hospital at all; just a bruise on my ankle is all. Just gave me relief. That's all, so I didn't have to climb.
"Q. Do you recall how long the relief was? A. A week and a half or something like that.
"Q. In 1926, December 14, 'was pouring solder into a lug. Solder splashed in his eyes.' Do you remember that? A. Yes.
* * * * *
"Q. How long were you incapacitated or injured or how long did you suffer from that? A. Well, just to go to the dispensary and back the next day.
* * * * *
"Q. Do you remember on February 16, 1927, you were driving a bolt through a cross-arm when your safety belt broke and you fell 34 feet? A. Yes.
* * * * *
"Q. What injuries did you get at that time? A. All I got was a fractured elbow."
Mikula testified that on this occasion he was at the Charity Hospital "about two weeks or something like that."
"Q. No other injuries outside of the broken bone in your elbow; is that it? A. Well, bruised. You can't help but get bruised up from falling.
* * * * *
"A. Well, as far as that goes, I fell down and got cut and had some stitches in my head, or something of that, sort."
Asked how long he was off work he answered: "Approximately about five weeks, I guess; five or six weeks. I wouldn't know exact."
Mikula was then asked:
"Q. Did you recall that accident when you were chosen as a juror and they asked you about accidents? Did you remember this one that you had when you fell 34 feet from the pole down on the sidewalk or pavement? A. I gave it no thought.
"Q. You didn't remember that at the time? A. How do you mean?
"Q. You know when you got impaneled as a juror and they asked you whether you had any accidents, and so forth, did you recall this accident when you had that broken bone in your elbow? A. I never gave it that thought.
"Q. You had forgotten about that; is that it? A. That is right.
* * * * *
"Q. Now, in December, 1939, do you recall an accident when you got a bruise to your right foot in jacking the butt of a 35-foot pole and the jack slipped and hit you on the foot, and the foreman's name was Purgh, I guess it is. Do you recall that? A. Yes; I recall that.
"Q. Did you have much of an injury there? A. No."
Mikula was asked:
"Q. On June the 2nd, 1929, do you recall an accident when you split your finger by breaking a piece of concrete from around an old pole and a piece of concrete slipped out of your hand and pinched your finger against the brick? Do you recall that? A. That is one I don't recall.
* * * * *
"Q. On December 21, 1939, did you have an injury to your right eye? Something blew into your right eye while working on a pole. A. Well, a cinder or something like that, yes.
"Q. You had some medical treatment for that? A. Just looked at it and that was all. It was taken out, or whatever —
"Q. Your eye was all right after that, was it? A. Yes.
"Q. These accidents that you had while working for the illuminating company — did you ever have to take compensation, or did they always keep giving you the same pay? Do you know what I mean by that question? Sometimes when you are incapacitated as an employee you get compensation, state compensation. A. There was no compensation there.
"Q. They don't have compensation? A. No.
"Q. For instance, at the time when you fell off the pole 34 feet, did you ever get compensation there? A. Not outside of my pay. They have their —
"Q. They have their own pay; is that right? A. That is right.
"Q. Did you consider those accidents? A. I don't consider any of them accidents.
* * * * *
"Q. Since I have read some of these reports, do you think of any accidents you had now that you know of that you haven't said anything about? A. No.
"Q. So far as your best judgment now is — A. My best judgment now is that the company's record were given to you —"
On Pearson's appeal to the Court of Appeals the judgment as to the Hauserman Company was affirmed while the judgment in favor of the Gardner company was "reversed for misconduct of juror, and remanded for further proceedings."
In cause No. 30940 this court sustained the Gardner Company's motion to certify the record. Thereafter in cause No. 30947 in this court, Pearson as plaintiff-appellant, against Gardner Cartage Company, Inc., defendant, and The E. F. Hauserman Company, defendant-appellee, filed a motion to certify the record which motion was overruled. In this last attempted appeal the E. F. Hauserman Company was the only appellee.
It is the contention of Pearson, appellee in the instant case, that by the allowance of the motion to certify filed by the Gardner company, the entire cause was brought to this court for review and not merely the particular claims of error raised on the allowance of Gardner's motion to certify. Accordingly, Pearson, as appellee, has filed his assignments of error against both Gardner and Hauserman. Appellee has filed the following assignments of error in respect of the judgment in favor of Gardner, to wit:
(1) Error in the general charge to the jury with reference to the issue of contributory negligence.
(2) Misconduct on the part of the jury.
The charge of misconduct is based upon the depositions of former jurors disclosing that such jurors, when asked about accidents to themselves or their families, had failed to answer.
Appellee also assigns as error by the Court of Appeals the affirmance of the judgment of the trial court sustaining the direction of a verdict in favor of the Hauserman company.
Pearson, in the instant case, filed (1) motion to dispense with the printing of the record, and, (2) assignments of error. Hauserman thereupon filed a motion to strike Pearson's motion to dispense with the printing of the record and assignments of error "on the ground and for the reason that the plaintiff-appellant, Valry W. Pearson's motion to certify as against this defendant-appellee, The E. F. Hauserman Company, was overruled by this court on the 23rd day of April, 1947, and the judgment entered in its favor by the Common Pleas Court which was affirmed by the Court of Appeals has become, and now is, final."
The evidence disclosed that the Hauserman company was remodeling a large building and was doing that work in part with its own employees and in part through independent contractors. The electrical wiring and installation was being done by an independent contractor which was Pearson's employer. The hauling of heavy machinery into the building was being done by the Gardner company, another independent contractor.
Pearson claimed that while he was working in the Hauserman building he was knocked off a scaffold through the combined negligence of the Hauserman Company and the Gardner Company.
Messrs. Harrison, Thomas, Spangenberg Hull, for appellee Valry W. Pearson.
Messrs. McKeehan, Merrick, Arter Stewart and Mr. Leroy B. Davenport, for appellant, and Mr. Arthur E. Griffith, for The E.F. Hauserman Company.
In the case of. Winslow v. Ohio Bus Line Co., 148 Ohio St. 101, 73 N.E.2d 504, it was held:
"A cause properly appealed to this court is here for the determination of all questions presented by the record, other than the weight of the evidence." See, also, Chicago Ornamental Iron Co. v. Rook, Admr., 93 Ohio St. 152, 112 N.E. 589; Pettibone v. McKinnon, 125 Ohio St. 605, 183 N.E. 786; Couk v. Ocean Accident Guarantee Corp., Ltd., 138 Ohio St. 110, 33 N.E.2d 9.
In the case of Keesecker, a Minor, v. G. M. McKelvey Co., 141 Ohio St. 162, 47 N.E.2d 211, paragraph two of the syllabus reads:
"A case coming from a Court of Appeals to the Supreme Court on its merits is present for determination on all questions presented by the record, but only the particular order or judgment appealed from, or which is immediately involved upon a certification of the record, may properly be reviewed."
However, the Keesecker case involved two separate appeals from the Common Pleas Court in the same case made at different times based on two different Court of Appeals journal entries and our holding was that we would pass only on the errors claimed in respect of the particular judgment appealed from. In the instant case there was but one appeal from the Common Pleas Court to the Court of Appeals and but one journal entry in each court. However, there were two defendants, one of whom was successful in the Court of Appeals while the other defendant was unsuccessful. In the Court of Appeals (as well as in the trial court) there was but one case, one judgment and one record.
As to Hauserman, Pearson was unsuccessful in both courts. Pearson attempted to appeal the Hauserman feature of the case to this court. Gardner won in the trial court but was unsuccessful in the Court of Appeals. Gardner filed a motion in this court to certify the record, which motion was allowed and the instant merit case resulted.
In the case of Swetland Co., v. Evatt, Tax Commr., 139 Ohio St. 6, 37 N.E.2d 601, it was held in paragraph two of the syllabus:
"When this court overrules a motion to certify a record, no precedent for the decision of later cases by this court is thereby established."
See, also, opinion of Judge Jones in Village of Brewster v. Hill, a Taxpayer, 128 Ohio St. 343, 352, 190 N.E. 766.
It is the opinion of the Chief Justice, Judge Zimmerman and the writer that the overruling of the motion to certify in cause No. 30947 is not a bar to our passing upon all errors assigned in the instant case pursuant to Section 12223-21 a, General Code, including the Court of Appeals' judgment in favor of The Hauserman Company. However, the majority of this court holds otherwise and, therefore, the Hauserman motion to strike should be and hereby is sustained.
Section 12223-21 a, General Code, provides in part:
"Assignments of error may be filed on behalf of an appellee which shall be passed upon by a reviewing court before a judgment or order is reversed in whole or in part. * * *"
As to appellee Pearson's assignment of error in respect of the claimed error in the general charge to the jury with reference to the issue of contributory negligence: In passing upon Pearson's motion for new trial the trial judge said:
"The plaintiff in his brief makes the broad statement that the trial court erred in stating to the jury that the burden of proof on the issue of contributory negligence was on the plaintiff. A careful reading of the charge shows conclusively that the court did not so charge and nowhere in the charge will be found the statement that 'the burden of proof on the issue of contributory negligence is on the plaintiff.'
"Counsel for plaintiff was asked toward the close of the charge whether he had any suggestions and counsel for the plaintiff suggested nothing further. The court did charge the jury that the plaintiff must at all times have been in the exercise of ordinary care for his own safety and the court charged this two or three times but at no place did the court say that the burden of proving that the plaintiff did not exercise ordinary care for his own safety was upon the plaintiff."
Coming now to the ground of error set up by the Gardner Cartage Company, Inc., appellant herein: In this respect it is stated in the journal entry of the Court of Appeals:
"As to defendant The Gardner Cartage Company, Inc., the judgment is reversed for misconduct of juror, and remanded for further proceedings."
No opinion was Written by the Court of Appeals but we are advised by counsel that the court followed its earlier decision in the case of Cleveland Ry., Co. v. Myers, 50 Ohio App. 224, 197 N.E. 803, a case which did not reach this court.
The claim of misconduct of the jury arises out of the fact that several jurors, on their voir dire examination, failed to disclose the facts in connection with injuries sustained by them or members of their families. The trial judge put the following questions to the jurors as a body:
"Have any of you, now, ever made a claim or brought a lawsuit against anybody asking damages for personal injuries? * * *
"Or have any close members of your family ever made a claim or brought a lawsuit? And I mean by that a claim with the Industrial Commission of Ohio. It doesn't need to be a lawsuit, just a claim of some kind.
"None of you, or no close members of your family have had that experience? That is an important question. You will think it over carefully and if such an occurrence occurred to any of you, or to a close member of your family you must make that fact known.
"Now, the exact reverse of that question is equally important. Have any of you ever had a claim made against you or a lawsuit brought against you asking money damages for personal injuries? Or has any close member of your family ever had a claim made against them, or any one of them, or a lawsuit brought, asking money damages for personal injuries, or making claim for damages for personal injuries, no matter how those injuries may have occurred, whether an automobile accident, slipping on the sidewalk, falling downstairs, a claim against the Industrial Commission?"
Only one juror responded. After questioning him the trial judge said: "Very well. Any others?" To which question no response was made.
Pearson's counsel then made a combined statement and question covering two and a half pages in the bill of exceptions in the course of which is to be found the following:
"Now, particularly, is there no one left on the panel who has had the experience of even collecting so much as a $25 bill, either you or your relatives, or your immediate relatives and family, for slipping on a sidewalk or stumbling over something in a store, or walking about?
"As Judge Newcomb says, it is a little bit unusual to find only one record of a claim having been made in a whole panel. Once in a while we have all had the unpleasant experience of trying a case over because some juror forgot to mention it. That doesn't mean you are not qualified to sit as jurors, but it does mean that it is important that that fact should be in the record. That's the only reason I press it a little bit more than might seem otherwise courteous."
Pearson's counsel also questioned the jurors Cashman, Mikula, Meehan and Essick individually, but no specific question respecting prior accidents or claims was asked of either individually.
The record is clear that neither of these jurors supplied any of the information later developed by depositions.
Some time after the jury's verdict Pearson's counsel took the depositions of four of the jurors Cashman, Mikula, Meehan and Essick respecting accidents occurring to them or to members of their families. These affidavits were submitted in support of Pearson's motion for new trial.
The decision of this branch of the case depends upon whether the trial court abused its discretion in overruling Pearson's motion for new trial on account of misconduct of the juror.
In the case of Steiner v. Custer, 137 Ohio St. 448, 31 N.E.2d 855, it was held in paragraph two of the syllabus:
"The meaning of the term 'abuse of discretion' in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court."
We think that the question of the abuse of discretion in the instant case can best be judged by a reading of the depositions and the applicable part of the memorandum of the trial judge on the motion for new trial as follows:
"I have carefully read all of the depositions which were taken by counsel for the plaintiff following the discharge of the jury. All save one of the jurors so examined bad failed to disclose certain situations in which they were involved in which they were claimants and it is rather an anomalous situation to have counsel for plaintiff complain that these claimants failed to disclose some accidents which they had had, most of them slight, and all of them some years before. One juror testified that he had had a claim made against him. The reading of the depositions will disclose that even at the time of the taking of the depositions and after having their memory refreshed time and time again, it was in most instances difficult for them to recall the accidents which had occurred to them. A further consideration of the testimony contained in the depositions will disclose no evidence that their failure to answer on the voir dire examination was deliberate.
"When jurors are being impaneled in a case many of them are enjoying that experience for the first time and they are not as collected and calm sitting in the jury box as they might be under different conditions, and it would be hard for anyone to conceive that these jurors deliberately fail to remember and disclose these accidents. The ultimate question is whether the parties to the lawsuit have been in any way prejudiced by the failure of jurors to recall accidents, most of them minor and many of them years after their experience.
"It has become a new form of indoor sport for plaintiffs, and, or, defendants after the rendering of an adverse verdict to them to start on a quiet search in an effort to discover some failure upon the part of one or more of the jurors to disclose a prior accident which has grown very hazy in their memory.
"It has reached the point where jurors are haled in before a notary public and forced to testify, or where immediately following the verdict one or more of the jurors will be interrogated by counsel even before their service in the court is ended. I have been called at my home by a number of jurors who have asked me whether or not it is necessary for them to talk to counsel following the rendition of their verdict.
"Jurors are summoned to this court to perform one of the most important but somewhat burdensome duties of their citizenship. The vast majority of jurors come to this court in good faith, perform their jury duty fairly and conscientiously, and when their term of service is over, unless they have been guilty of something more than forgetting they fell out of a tree when they were twelve years old, or had a fender on their car scraped years before, they should be left alone and not be harassed and subjected to embarrassment and annoyance. I can testify that by reason of the several calls I have had from jurors that it is doing the jury system much harm by these practices. Somewhere the practice should be stopped and jurors, many of whom make sacrifices to serve as jurors, should be let alone.
"With all due respect to this new philosophical rule which has been foisted upon our jurisprudence, I respectfully urge that the question of any possible prejudice can safely be left to the trial court.
"From the reading of the depositions taken in the instant case, I cannot conceive how the failure of these witnesses to report accidents which had occurred to them, could in the least have prejudiced the jury in this case.
"Plaintiff's motion for a new trial as against the defendant The Gardner Cartage Company, Inc., will be overruled and exceptions noted for the plaintiff."
Section 11364, General Code, provides:
"In every stage of an action, the court must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. No judgment shall be reversed, or affected, by reason of such error or defect. In the judgment of any reviewing court upon any appeal in any civil action, when it is sought to reverse any final judgment or decree or obtain a new trial upon the issues joined in the pleadings, such reviewing court shall certify on its journal whether or not in its opinion substantial justice has been done the party complaining, as shown by the record of the proceedings and judgment under review. In case such reviewing court shall determine and certify that in its opinion substantial justice has been done to the party complaining as shown by the record, all alleged errors occurring at the trial shall by such reviewing court be deemed not prejudicial to the party complaining and shall be disregarded and such judgment or decree under review shall be affirmed, or it shall be modified if in the opinion of such reviewing court a modification thereof will do more complete justice to the party complaining. In case such reviewing court shall determine and certify that in its opinion substantial justice has not been done to the party complaining as shown by the record such reviewing court shall proceed as provided in Section 12223-38 of the General Code."
We recognize the right of a litigant to be informed fully in all pertinent matters pertaining to prospective jurors to the end that challenges may be intelligently exercised on the ground of suspicion of prejudice or peremptorily, but we recognize also that the real question for a reviewing court is whether substantial justice has been done. Whether substantial justice has been done in a cause such as we have before us is a question in the first instance for the trial court in passing upon a motion for new trial. In other words, the answer rests in the sound discretion of the trial court and where the record discloses no abuse of such discretion, the decision of the trial court should be upheld.
We are of the opinion that the trial court did not abuse its discretion in this matter and we endorse what the trial judge said on the subject in the memorandum quoted from above. It does not appear that such action of the trial court was prejudicial to the appellant.
Therefore, the judgment of the Court of Appeals reversing the judgment in favor of the Gardner Cartage Company, Inc., in the trial court should be and hereby is reversed and the judgment of the trial court should be and hereby is affirmed.
Judgment reversed in part and judgment of the Court of Common Pleas affirmed.
MATTHIAS, HART, SOHNGEN and STEWART, JJ., concur.
WEYGANDT, C.J., TURNER and ZIMMERMAN, JJ., dissent from paragraph one of the syllabus, but concur in paragraph two of the syllabus, in the opinion and in the judgment.
I concur fully in the syllabus, in the judgment and in the reasoning of Judge Turner's opinion in support thereof, but I deem it proper to state the reasons for my concurrence in allowing in this proceeding the motion of Hauserman company to strike as against it Pearson's assignment of error.
Pearson, as plaintiff, sought a joint judgment in a tort action against both defendants. On motion, there was a judgment for the defendant Hauserman company at the close of plaintiff's case and a verdict of the jury for the defendant Gardner Cartage Company. There was one motion for a new trial as against both defendants, which was overruled, and a judgment for both defendants against the plaintiff for costs.
There was one notice of appeal by the plaintiff to the Court of Appeals, but the Court of Appeals rendered two separate judgments through a single entry, one affirming the judgment in favor of Hauserman company and the other reversing the judgment and remanding the cause as to the defendant Gardner Cartage Company. Then, for the first time, there came into existence two separate judgments affecting two separate defendants. There was a final judgment in favor of the defendant Hauserman Company, subject to an appeal by Pearson, and a judgment of reversal as to the defendant Gardner Cartage Company in favor of the plaintiff Pearson, subject to appeal by the Gardner Cartage Company. At this point of the proceedings, Pearson had no right of appeal against the Gardner Cartage Company because the judgment of the Court of Appeals as to it was in his favor, and the Gardner Cartage Company had no right of appeal against Hauserman Company.
Pearson filed a motion to certify the record as against Hauserman Company, which motion was overruled by this court, and the judgment in favor of Hauserman Company necessarily became final. There certainly could be no further appeal by Pearson against Hauserman Company. There cannot be a second appeal from the same judgment. Irwin v. Lloyd, Trustee, 65 Ohio St. 55, 61 N.E. 157.
When the Gardner Cartage Company filed its motion to certify the record as to the judgment against it, the appeal was against Pearson, and the Hauserman Company was not made a party to that proceeding. No notice of this appeal, always a jurisdictional requirement, was given to Hauserman Company by either Pearson or the Gardner Cartage Company. The only claimed error against the Hauserman Company related to the rendering of the judgment in its favor by the trial court and that claim had already been disposed of by refusal of this court to order the certification of the record on Pearson's motion for that purpose. The only errors involved in the appeal of the Gardner Cartage Company from the Court of Appeals related to the misconduct of jurors, a matter affecting exclusively the rights of Pearson as to the Gardner Cartage Company and not the rights of Pearson as to Hauserman Company.
I am unable to discover any legal right or justification for the filing of an assignment of errors by Pearson as against Hauserman Company in this appeal. I agree that a cause properly appealed to this court is here for the determination of all questions presented by the record other than the weight of the evidence, but the record to be considered here, in my opinion, must be limited to the questions raised by the assignment of errors filed by the Gardner Cartage Company and not to extraneous issues sought to be raised by one who does not and cannot stand in the position of an appellant against the other party in this proceeding, the Hauserman company. Hauserman company had a final judgment in its favor and was no longer in court.
In my opinion, this court is justified in recognizing separate appeals by separate defendants against whom separate and different judgments have been rendered. This court has already recognized a separate appeal in this case when it entertained Pearson's motion to certify the record as to the judgment for Hauserman Company against him.
Section 12223-15, General Code, provides:
"When the interest of a party is separate and distinct from that of all others in the suit, and he desires to appeal his part of it, it shall be so allowed by the court * * *. The court also shall make such order as to the papers, pleadings, and copies thereof, and make such other orders as it deems right in view of a division of the case for an appeal."
2 Ohio Jurisprudence, 81, Section 37, in commenting on that section of the General Code, reads:
"Under this statute where there has been a final decree, and where the appellant's interests are separate from those of the other parties with whom he may have been united in the suit, he has the right to appeal his separate part of the case, the ground being that his interests are so separate and distinct from those of the others that they can be separately adjudicated in the appellate court."
I grant that if this action had been one on a joint obligation rather than a joint and several tort claim, or the judgment of the Court of Appeals had been a joint one against two defendants, then either defendant would have a, right of appeal and his appeal would bring the other defendant with him into this court. Emerick v. Armstrong, 1 Ohio, 513; Ewers v. Rutledge, 4 Ohio St. 210. But, since the instant case is a tort action and separate judgments were rendered by the Court of Appeals, each party is entitled to prosecute his separate appeal as and when the judgment as to him is adverse. It seems to me that this view or position is in accord with the holdings of 'this court in the cases of State, ex rel. Hughes, v. Cramer, Judge, 138 Ohio St. 267, 34 N.E.2d 772; Keesecker, a Minor, v. G. M. McKelvey Co., 141 Ohio St. 162, 168, 47 N.E.2d 211; In re Kurtzhalz, 141 Ohio St. 432, 48 N.E.2d 657.
I agree also that when this court overrules a motion to certify a record, no precedent for the decision of later cases by this court is thereby established; but I do maintain that when this court refuses to order the certification of the record of a case in which a judgment has been duly entered in the court from which the appeal is sought, that judgment becomes final and is not again appealable to this court.
MATTHIAS, SOHNGEN and STEWART, JJ., concur in the foregoing concurring opinion.