Forman v. Alexander's Markets

FOX, J.

This is an action for personal injuries growing out of a motor vehicle collision. After trial by jury, a verdict was rendered in favor of defendants, upon which judgment was entered. A motion for new trial was denied. Plaintiffs appeal from the judgment and the order denying their motion for a new trial.

Plaintiffs’ principal contention is that they were denied a fair trial because of the misconduct of several jurors, as set out in affidavits filed in support of their motion for a new trial.

The record on appeal consists of the judgment roll and a partial reporter’s transcript, which is limited to the

voir dire

examination of the jury by the court and counsel, the jury instructions, and the proceedings on the motion for the new trial.

During the impanelment of the jury, the court inquired as follows of the prospective jurors: “Bearing in mind that everyone is entitled to a fair and impartial judgment, irrespective of race, color or creed, it is a fact that some of the parties here concerned are persons of color or of race which are not Caucasian, and would that influence you in the slightest?” There was no response, indicating

that no

one entertained such prejudice. On

voir dire

plaintiffs’ counsel propounded questions seeking to elicit whether any of the prospective jurors harbored racial prejudice which would preclude their granting plaintiffs a fair trial. The veniremen disavowed the existence of such prejudice.

Plaintiffs filed the affidavits of four jurors in support of their motion for a new trial. Three of the affidavits are substantially similar. Typical of these is the following, executed by Sara C. Breuer, who deposed:

“That she was one of the jurors duly impaneled and heard the above captioned ease tried in Department 67 before the Honorable Leon T. David, Judge presiding.

“That the jury impaneled in said trial immediately after the selection of its foreman became completely disorderly and did not permit full discussion of the case.

“That Eunice M. Talmadge, one of the jurors, stated that she desired to discuss the ease fully before taking a vote