Opinion
No. 3381, No. 3381
Decided November 21, 1941. Decided December 8, 1941.
Jury — Voir dire examination — Juror, remaining silent, not disqualified, when — Not ground for new trial, when — Validity of challenge a question for court — Section 11419-52, General Code — Negligence — Motor vehicle collision at highway intersection — Vehicles to keep to right of center of highway — Section 6310-17, General Code — Charge to jury — Omission to charge not prejudicial, when — Person making left turn may assume others obeying law — Special interrogatory — Refusal to submit not error, when — Answer not determinative of ultimate fact — Rules of traffic — Overtaking and passing another vehicle — Section 6310-19, General Code, applicable, when — Interest on judgment runs from date of judgment.
1. Where, on the voir dire examination in the trial of a negligence case arising out of an automobile collision, one of the jurors, who had filed workmen's compensation claims for three industrial accidents in no way similar to the one out of which the issue being tried arose, remains silent when the jurors are examined as to damage claims made on account of injuries, the trial court does not commit prejudicial error in overruling a motion for a new trial based on the ground of disqualification of the juror.
2. Section 11419-52, General Code, leaves to the trial court the determination of the validity of a challenge of a juror, with the admonition that it be sustained if the court has any doubt as to the juror's being entirely unbiased.
3. In an action arising out of an automobile collision at an intersection occurring when the plaintiff attempted to make a left-hand turn from a standing position at the right side of the highway and was struck when near the middle of the intersection, by defendant's automobile approaching from the rear, it is not error for the trial court, under the provisions of Section 6310-17, General Code, providing that vehicles shall keep to the right of the center line of the highway, to give a general charge to the jury that "if the defendant operated his motor vehicle to the left of the center and that fact, if it be a fact that he operated it to the left of the center, proximately caused the accident, then, of course, that would be said to be negligence."
4. In such case, it is not error for the trial court to give a special charge before argument to the effect that a person making a left turn has the right to assume, in the absence of knowledge to the contrary, that any automobile to his rear is obeying the law and proceeding at a lawful rate of speed.
5. It is not error for the trial court in such case to refuse to submit a special interrogatory to the jury questioning whether "the fact that plaintiff did not see the defendant's automobile as it approached the scene of the accident until the actual impact of the two automobiles directly" contributed "in any degree to cause the accident," as the answer to such interrogatory would not be determinative of any ultimate fact.
6. Section 6310-19, General Code (110 Ohio Laws, 136; repealed 119 Ohio Laws, 766), which provided that "a vehicle overtaking another vehicle shall signal to the vehicle to be overtaken and such vehicle shall immediately turn to the right to give the overtaking vehicle room to pass," is confined to the rule to be followed where a faster moving vehicle seeks to pass a slower moving vehicle, both moving in the same direction.
7. An omission from the court's general charge to the jury is not prejudicial error where counsel fails to call such omission to the court's attention.
8. The date at which interest on the amount of a verdict begins to run is the date of judgment and not of verdict.
APPEAL: Court of Appeals for Franklin county.
Messrs. Henderson, Burr, Randall Porter, for appellee.
Mr. B.B. Bridge, for appellant.
This case is before this court upon appeal on questions of law from judgment rendered upon a verdict for $3,000 returned by a jury.
It involves an automobile collision occurring about seven miles south of Columbus on route 23, where that route is intersected from the east, but not crossed, by a road known as Canal road. The plaintiff, who lives on Canal road, was driving his automobile south on route 23 intending to return to his home. He had reached the point where the Canal road intersects route 23. At that moment there was a rather heavy congestion of motor vehicles at this point. A truck was proceeding northward, followed by an automobile going in the same direction. The truck, however, turned eastward on Canal road, the automobile passing it at about that time. There were two cars proceeding southward on route 23. There was also a car coming out of Canal road, waiting for an opportunity to turn north on route 23. Evidence is introduced tending to show that when the plaintiff reached this point he drew over to the right side of route 23 to such a position that the edge of the improved highway bisected his automobile. There he stopped, waiting until the cars above mentioned had passed. He then looked in his mirror and saw nothing to the north, and also looked from his left-hand window, from which he stated that he could see for 700 feet. He put out his left hand and started his car across route 23 to enter into Canal road. He did not see the car of the defendant approaching from the north, but it struck his car midway and pushed it to the southeast corner of the intersection, injuring plaintiff.
The defendant, appellant herein, presents six assignments of error, which we will examine in the order presented.
It is claimed that there was error prejudicial to the defendant when the court overruled defendant's motion for a new trial based on the ground that one of the jurors was guilty of misconduct on the voir dire examination. During that examination the jurors were examined as to damage claims made on account of injuries and all jurors remained silent. After the trial, defendant discovered that one of the jurors had been involved in three accidents, the first being in 1916, a coal mine accident which resulted in the loss of an arm; the second in 1932 when his shoulder was broken in a mine accident; and the third subsequent to that. It is stated that in each of these cases such juror made claim against the Industrial Commission. It is urged, and cases are cited in support of counsel's position, that the failure of this juror to disclose that he had suffered injuries and had made claims for compensation was prejudicial, and that the defendant was entitled to further examine him and peremptorily excuse him if such examination disclosed that he had been injured and had presented claims. We do not find any prejudice in overruling the motion for a new trial on account of this so-called disqualification of the juror. The accidents from which he had suffered were in no way similar to the one in which he sat as a juror, two of them at least occurring in coal mine accidents. The fact that he had been in an accident was patent to any observer, as he had lost an arm, and if counsel thought that matter was of consequence he should have pursued it before the jury was sworn. In addition to this the bill of exceptions does not disclose the facts upon which this assignment is based. We overrule assignment No. 1.
Assignment No. 2 is to the effect that the court erred in its general charge to the jury on the provision of Section 6310-17, General Code (115 Ohio Laws, 231; repealed, 119 Ohio Laws, 766), which is to the effect that vehicles shall keep to the right of the center or center line of the road except as otherwise provided. Counsel states that the defendant admitted that he swerved his vehicle toward the left of the road immediately before the collision in an attempt to avoid it. Counsel quotes and criticizes the charge of the court. We have examined the charge which contains the following pertinent statement:
"Now if the defendant operated his motor vehicle to the left of the center and that fact, if it be a fact that he operated it to the left of the center, proximately caused the accident, then, of course, that would be said to be negligence. Now, what the fact is, I say you are to determine."
Counsel states that while the violation of this statute is negligence per se, it does not require that the operator of a vehicle keep to the right side of the road under all circumstances, and the claim is made that the defendant's testimony showed that he turned to the left of the middle line of the road in an emergency to avoid a collision caused by the negligence of the plaintiff. It is claimed that the charge of the court imposed upon the defendant the duty to keep to the right side of the highway under all circumstances and particularly under the circumstances in the case as indicated by the defendant's testimony. Had the plaintiff's car remained standing one-half upon the berm and one-half upon the paved highway, the defendant could have passed him without crossing the center line; but the defendant claims that, inasmuch as plaintiff's car had been started and was halfway across the center line, such an emergency was presented as would permit the defendant to cross the center line in order to make a safe passage. We have studied the charge of the court and find that it was correct, and we overrule assignment No. 2.
Assignment No. 3 is to the effect that the court erred in giving to the jury before argument plaintiff's special request No. 2 to the effect that a person making a left-hand turn has the right to assume, in the absence of knowledge to the contrary, that any automobile to his rear is obeying the law and is proceeding at a lawful, reasonable and proper rate of speed. This special charge, in our judgment, is a sound explanation of the law. Assignment No. 3 will be overruled.
Assignment No. 4 is to the effect that the court erred in refusing to submit to the jury defendant's special interrogatory No. 3, the question being: "Did the fact that plaintiff did not see the defendant's automobile as it approached the scene of the accident until the actual impact of the two automobiles directly contribute in any degree to cause the accident?" It is claimed by counsel that the refusal to submit this interrogatory was prejudicial error for the reason assigned and discussed. We, however, are of the opinion that the court was justified in refusing to submit this interrogatory as its answer would not be determinative of any ultimate fact.
Assignment No. 5 is to the effect that the court erred in not charging upon the provisions of Section 6310-19, General Code (110 Ohio Laws, 136; repealed, 119 Ohio Laws, 766), which read as follows: "A vehicle overtaking another vehicle shall signal to the vehicle to be overtaken and such vehicle shall immediately turn to the right to give the overtaking vehicle room to pass." It is claimed that under the testimony the provisions of this section were applicable, that the plaintiff was guilty of negligence per se if he violated it, and that the defendant was entitled to the benefit of its provisions. We are of the opinion that the statute referred to has nothing to do with the circumstances under which the accident occurred, it being a provision confined to the rule to be followed where a faster moving automobile seeks to pass a slower going vehicle, both going in the same direction. Another reason why it is not prejudicial error is that there was no attempt upon the part of counsel to call the court's attention to the omission to so charge. Assignment No. 5 is overruled.
Assignment No. 6 is to the effect that the court erred in awarding interest on the amount of the verdict from the date of the verdict instead of from the date of the judgment. We have recently passed upon this matter and have held that the date when the interest begins to run is the date of the judgment and not of the verdict. To this extent the judgment should be modified.
This case is eminently one for a jury, and we are not justified in disturbing it as we find no prejudicial error upon the part of the court.
The judgment is modified in reference to the date on which the interest would begin, and, as modified, is affirmed.
Judgment modified and affirmed as modified.
BARNES and HORNBECK, JJ., concur.
ON APPLICATION for rehearing.
This matter is before us on the application for rehearing which counsel states will be confined solely to assignment of error No. 1, which is to the effect that there was error in overruling defendant's motion for a new trial based on the ground that one of the jurors was guilty of misconduct on the voir dire examination.
The application sets out in detail that portion of the court's opinion relating to the juror in question. This court held that there was no prejudice in overruling the motion for a new trial on account of the so-called disqualified juror. We have read this matter over carefully again, together with counsel's argument, and we adhere to the view that there was no prejudice in this matter. Counsel cites Section 11419-52, General Code, which provides that a juror "may be challenged" for "other cause that may render him at the time an unsuitable juror. The validity of such challenge shall be determined by the court, and be sustained if the court has any doubt as to the juror's being entirely unbiased."
The matter of the qualification of the juror was within the proper jurisdiction of the trial court. There is nothing that indicates that the juror was guilty of misconduct except that it might be urged that he was guilty by reason of his failure to disclose to counsel the several accidents from which he had suffered, none of which related to automobiles. Counsel in his original brief states that during the trial the injury to the juror's arm was discovered and that this was called to the attention of the court. An inquiry of the juror by the court disclosed that the injury had been sustained in an accident. The defendant then claimed that the juror withheld important information on the voir dire and asked that a mistrial be declared, which was denied. The claim is made that the information acquired after the trial tended to aggravate the misconduct of the juror, and that the court should have granted the defendant's request either during the trial or on the motion for a new trial. It is stated that the failure to do so constituted prejudicial error.
In the examination of the jurors on voir dire, no question was specifically addressed to the juror in question. The following interrogatory was propounded to the jurors en banc: "Do any of you know of any reason why you could not act as a juror in this case? Nothing in the case stated so far either by Mr. Stanley or by myself that would disqualify you as a juror in your judgment?" A juror then responded, "I haven't had any accident," to which counsel for defendant stated, "Mr. Stanley asked if any of you had been injured, and I want to ask if any of the members of your family have been in any kind of accident. Now you have told me that you never was injured. Do any other members of the jury find themselves in the same position, that is, any member of your immediate family?"
As stated in our original decision we do not see that anything thus far disclosed was a "cause that may render him at the time an unsuitable juror." Counsel quotes the opinion of this court as follows: "In addition to this the bill of exceptions does not disclose the facts upon which this assignment is based." Counsel has called our attention to a matter that escaped our notice, i.e., that the same appears in the bill of exceptions. Mr. Murdy, the juror, was then examined and counsel commented that "Your right arm is off above the wrist," and the juror was asked, "How did you lose that arm?" The juror answered, "I lost that in a coal mine. I got my arm taken off in a coal mine in 1916." He was asked whether he made a claim to the Industrial Commission, and was allowed compensation, to which he replied in the affirmative. He was further asked, "Now in 1932, you were also injured in an accident?" to which he replied, "Yes." That accident was also a mine accident. And he was again inquired of, "Were you subsequently injured while you were working as a bill-passer?" to which he replied, "Yes; that was about, I judge, along about eight or nine years." He was asked if he made a claim on account of that injury, and he responded that he was still drawing compensation. After that matter was presented to the court the motion for new trial was overruled.
We do not think the accidents from which the juror suffered and upon which he made claims for compensation many years before the trial of the case at bar, render him at the time an unsuitable juror, and the trial court so held by overruling the motion for a new trial. While this court may have been technically in error in stating that nothing appeared in the bill of exceptions in reference to the alleged injuries of the juror, we now give consideration to the matter we have just quoted from the bill of exceptions.
Section 11419-52, General Code, clearly grants to the trial court the right to pass upon a challenge based upon the grounds stated in the statute. The statute states that "the validity of such challenge shall be determined by the court, and be sustained if the court has any doubt as to the juror's being entirely unbiased." There was no challenge made before the jury was sworn, but the matter was afterwards called to the attention of the court. Counsel states in the bill of exceptions that he intended making some investigation of the matter, and "if I find that this juror did make a claim against any one arising out of that injury, of course I would make it a basis for a motion for a new trial," to which the court responded, "I did make inquiry of the juror after it had been called to my attention as you have related, and he made the statement to me that you have read into the record. * * * I am not clear that the juror withheld any information and I am not sure from what I have read that there was any inquiry put to this juror that would require him or did require him to give the information there with reference to his arm. I will overrule it. That can be more carefully looked into at a later date." The later date was at the time the motion for new trial was argued, and counsel asserted the action of the juror was prejudicial, which objection the court overruled. The statute leaving the validity of the challenge to be determined by the trial court with the admonition that it be sustained if the court has any doubt as to the juror's being entirely unbiased, and the court having overruled the claim asserted by counsel that the juror was prejudiced, we are not disposed on that account to disturb the verdict as rendered.
The application for rehearing is denied.
Application denied.
GEIGER, P.J., HORNBECK and BARNES, JJ., concur.