Opinion
Oct. 3, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Harlan G. Balaban, Denver, for plaintiff-appellee.
White & Steele, Mark C. Hinman, R. Eric Peterson, Denver, for defendant-appellant.
Page 1352
SILVERSTEIN, Chief Judge.
Plaintiff McGrew brought this action against Fanay to recover damages for injuries incurred in an automobile accident. Fanay admitted liability and the case was tried to a jury on the sole issue of the amount of damages, if any. The jury awarded McGrew $6100 damages. Fanay moved for a new trial on the sole ground that one of the jurors was guilty of misconduct. After a hearing at which evidence was received, the motion was denied. Fanay appeals. We affirm.
In his motion Fanay asserted that a juror, who was selected as foreman, was guilty of misconduct during the Voir dire in failing to respond properly to questions asked by Fanay's counsel. During the Voir dire, counsel disclosed that McGrew claimed that he suffered neck and back injuries and prostate problems arising from the accident. Defendant's counsel then asked the jurors as a group,
'We have spoken about automobile accidents and some of you have related your personal involvement in them. Have any of you suffered any neck or back injuries as a result of any accident?'
'Have any of you gentlemen ever sought any medical attention for any kidney or prostate problem?'
The juror indicated a negative response to both of these questions. He was then asked, individually, 'Do you know any reason why you couldn't be a fair and impartial juror in this case?' His response was 'No.'
After the jury was discharged, the juror talked to defendant's attorneys. During this conversation, the juror disclosed that he had had a back problem which developed after a golf game. The juror, by affidavit and in his testimony at the hearing on the motion, denied he had suffered any back injury and attributed his problem to arthritis. He further denied that he had ever had any prostate problems. Although this testimony apparently conflicted with some of his statements previously made to Fanay's attorneys, the hearing failed to establish any misconduct on the part of the juror or any intent to deceive. There was no showing of any prejudice to Fanay, or of any facts which would tend to prejudice him. Under these circumstances the denial of the motion for a new trial was proper Fritz v. Boland & Cornelius, 2 Cir., 287 F.2d 84.
Butters v. Dee Wann, 147 Colo. 352, 363 P.2d 494, relied on by Fanay is not applicable here. In that case the juror was guilty of gross misconduct, while it is implicit from the findings of the trial court in the instant case that the juror was not guilty of misconduct.
Judgment affirmed.
DWYER and SMITH, JJ., concur.