" The reasons why a litigant is entitled to a new trial because a juror gave a false answer, or no answer, to a pertinent question addressed to him on the voir dire examination are set out at length in the case of Shulinsky v. Boston Maine R. R., 83 N.H. 86, 139 A. 189. When the jury was empaneled a juror was asked whether he had had any business relations with or was a creditor or debtor of the plaintiff, and the juror remained silent.
Id.Importantly, the Court noted that “the fact that the false information was unintentional, and that there was no bad faith, does not affect the question, as the harm lies in the falsity of the information, regardless of the knowledge of its falsity on the part of the informant; [and] while willful falsehood may intensify the wrong done, it is not essential to constitute the wrong.” Id. at 985 (paraphrasing and citing Shulinsky v. Boston & M.R.R., 83 N.H. 86, 139 A. 189, 191 (1927)). In reaching this conclusion, the Court cited at length a set of reasons why false answers on voir dire required reversal, including that
"It is unnecessary to pass on defendant's requests for findings and rulings . . . "This is a plain case of passing upon the qualifications of jurors, and the court finds the two jurors mentioned were disqualified. Shulinsky v. Railroad, 83 N.H. 86 is sufficient authority for the conclusion reached here and for an order of new trial." The defendant excepted to the refusal of the court to dismiss the plaintiff's motion.
See also Tableporter v. Urist, 157 Misc. 347, 283 N.Y.S. 350 (Mun. Ct. 1935) (conviction set aside where juror's son applied to defendant for a job). See, e. g., State v. West, 157 W. Va. 209, 210, 200 S.E.2d 859, 861 (1973) (reversible error where trial court denies challenge for cause to juror who is employee of prosecutorial agency); State v. Kokoszka, 123 Conn. 161, 163, 193 A. 210, 211 (1937); State v. Howard, 17 N. H. 171 (1845), overruled on other grounds, Shulinsky v. Boston M. R. Co., 83 N. H. 86, 89, 139 A. 189, 191 (1927).
And upon discovery of the incompetency of the juror, the motion for relief from the judgment should have been sustained. Shulinsky v. Boston Maine Railroad, 83 N.H. 86, 139 A. 189; Wright v. Bernstein, 23 N.J. 284, 129 A.2d 19; Marvins Credit, Inc., v. Steward, D.C.Mun.App., 133 A.2d 473; Harshaw v. Kansas City Public Service Co., 154 Kan. 481, 119 P.2d 459; Kerby v. Hiesterman, 162 Kan. 490, 178 P.2d 194; Kaminski v. Kansas City Public Service Co., 175 Kan. 137, 259 P.2d 207; Stillwell v. Johnson, Okla., 272 P.2d 365; Cleveland Railway Co. v. Myers, 50 Ohio App. 224, 197 N.E. 803; Drury v. Franke, 247 Ky. 758, 57 S.W.2d 969, 88 A.L.R. 917; Texas Employers' Insurance Association v. Wade, Tex.Civ.App., 197 S.W.2d 203; Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459. True, the verdict was unanimous but that did not immunize it from attack upon the ground that the particular juror was not competent. The integrity of the verdict depended upon there being twelve competent jurors, not eleven. United States v. Chapman, 10 Cir., 158 F.2d 417, certiorari denied 335 U.S. 860, 69 S.Ct. 134, 93 L.Ed. 406.
The detrimental effect of juror mendacity on the free and fair use of a peremptory challenge is no less egregious than its effect on the inability to make a challenge for cause. In Olympic Realty Co. v. Kamer , 283 Ky. 432, 141 S.W.2d 293, 297 (1940), two jurors who were intimately acquainted with a key witness failed to disclose that information despite a direct question on the point during voir dire. Our predecessor Court in Kamer , 141 S.W.2d at 297-298, reiterated the principles adopted in Drury v. Franke , 247 Ky. 758, 57 S.W.2d 969, 984-985 (1933) (citing Shulinsky v. Boston & Maine R. R. Co. , 83 N.H. 86, 139 A. 189 (1927) ), a passage we find well-worth recalling here:When the right [to challenge a juror] is lost or impaired, the statutory conditions and terms for setting up an authorized jury are not met; the right to challenge a given number of jurors without showing cause is one of the most important rights to a litigant; any system for the empaneling of a jury that prevents or embarrasses the full, unrestricted exercise of the right of challenge must be condemned; a litigant cannot be compelled to make a peremptory challenge until he has been brought face to face in the presence of the court, with each proposed juror, and an opportunity given for such inspection and examination of him as is required for the due administration of justice; the right to reject jurors by peremptory challenge is material in its tendency to give the parties assurance of the fairness of a trial in a valuable and effective way; the terms of the statutes with reference to peremptory challenges are substantial rather than te
This was not such a business relationship as would necessarily disqualify, and the court's implied finding that the juror was in fact indifferent is sustainable upon the record. McLaughlin v. Union Leader, 99 N.H. 492, 116 A.2d 489 (1955); cf. Shulinsky v. Railroad, 83 N.H. 86, 139 A. 189 (1927). Likewise the relationship of another juror to an employee of the defendant was at most ground for the exercise of a challenge to the favor rather than for absolute disqualification. Seavy v. Dearborn, 19 N.H. 351 (1849); see 47 Am. Jur. 2d Jury § 319 (1969).
If a juror falsely represents his interest or situation or conceals a material fact relevant to the controversy and such matters, if truthfully answered, might establish prejudice or work a disqualification of the juror, the party misled or deceived thereby, upon discovering the fact of the juror's incompetency or disqualification after trial, may assert that fact as ground for and obtain a new trial, upon a proper showing of such facts, even though the bias or prejudice is not shown to have caused an unjust verdict, it being sufficient that a party, through no fault of his own, has been deprived of his constitutional guarantee of a trial of his case before a fair and impartial jury. See also Shulinsky v. Boston M. R. R., 83 N.H. 86, 139 A. 189 (1927). Our system of justice goes to great lengths in seeking compliance with the constitutional mandates regarding impartial juries.
Although authority has been delegated to the Superior Court to adopt rules for the drawing and impaneling of juries (RSA 519:20), no rules of general application have been adopted. Shulinsky v. Railroad, 83 N.H. 86, 87; Lebrun v. Railroad, 83 N.H. 293, 294; RSA 519:19. The constitutional provision that it is the right of every citizen to be tried by "judges as impartial as the lot of humanity will admit" (N.H. Const., Pt. I, Art. 35th) has been given a broad interpretation.
The jury was properly constituted. See Shulinsky v. Railroad, 83 N.H. 86, 88-89. We next consider whether the trial was rendered unfair by what transpired in the trial of the son's case during the suspension of the trial of this case.