La Gue v. Delgaard

DORAN, J.

This is an action for personal injuries suffered when plaintiff fell into a hole or depression in a nursery owned and operated by respondent Delgaard. A jury found a verdict for the defendant, a motion for new trial was denied, and plaintiff is appealing from the judgment rendered.

The record discloses that plaintiff, a camellia grower, had previously visited the respondent’s nursery, and on May 20, 1950, again visited the nursery to purchase camellia stock and asked for Earl Woodard who had previously waited on plaintiff. After ordering 50 “Cheerful” camellias, plaintiff was shown additional varieties arranged in rows on the ground between 30 and 36 inches apart. According to appellant’s brief, “As appellant was thus walking along the rows and conversing with Woodard, she stepped into a hole in the ground, about 14 inches deep and at least this wide, first with her right foot, and thereafter fell to the ground with the left foot going into the hole also.”

As a result of the fall, plaintiff suffered a fracture of the tibia and fibula. “About two weeks after being off her crutches, Mrs. LaGue, while in her back yard fell, by virtue of the right ankle turning, as a result of which she broke her second right toe. In January, 1951, the right ankle turned again, causing her to fall, and since the fall in March, 1950, the right ankle has been weak and caused her to fall many times.”

It is appellant’s contention that certain statements of Juror Nina Fitch given on

voir dire

examination “constitute prejudicial misconduct and prevented plaintiff from having a fair trial.” This is based upon the affidavit of another juror, Esther B. Schrader, that Nina Fitch, after the present case

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liad been concluded and while en route to another ease, stated to Mrs. Schrader, “I always tell a lie every time I get in the jury box when they ask ‘would you want a juror in your frame of mind to be a juror for you?’ and I say ‘Yes’; but I am prejudiced”; that in the instant case Juror Fitch on

voir

dire, gavé such an affirmative answer to such a question. Mrs. Schrader’s affidavit further avers that on the same day Miss Fitch stated in reference to the instant case, “You know, that attorney, Mr. Betty, is Jewish, and I have a hard time not being prejudiced against that race,” whereupon affiant told Miss Fitch “that she did not think that this was right and that she, affiant, was going to the judge and ‘let the chips fall where they may’; that some time later in the day said Nina Fitch did ask affiant to let the matter ride.”