Meacham v. Woods

Mb. Justice Swepston delivered the opinion of the Conrt. Meacham sued J. M. Woods for damages for personal injuries by reason of his having been struck by the automobile owned and operated by Woods a little after six o ’clock in the morning of February 14, 1955, on Airways Boulevard, which is the main highway leading from the city to the Memphis Airport. On the first trial there was a verdict in favor of the defendant Woods; but this verdict was set aside and a new trial granted. That trial began on May 21,1956. On the second trial on May 28,1957, there was a verdict for plaintiff in the amount of $9,500 and costs. Defendant filed a wayside bill of exceptions under T.C.A. sec. 27-111 and after the second trial and verdict and judgment against defendant, he, on his appeal to the Court of Appeals, assigned as error the action of the [21] Court in granting a new trial after the first trial, as permitted by T.C.A. sec. 27-108. The assignment of error arises out of the action of the trial judge based on the theory that one of the jurors, G-eorge Haskell, was a biased juror because of his alleged knowledge of the accident at the time it occurred. The plaintiff’s motion for a new trial charged that this juror had answered on the voir dire examination that he had not formed or expressed an opinion as to the accident when as a matter of fact, it was alleged that he did form an opinion about material facts in the case and that such was not known to the plaintiff’s attorneys until after the trial. It was also charged that the information possessed by this juror had been communicated to other members of the jury. It developed, however, beyond any controversy that there was no merit in this second charg'e. The first trial of this case occurred a year and three months after the accident. Then about a week after the granting of the motion for new trial, the attorneys for the plaintiff obtained an affidavit from this juror Haskell, the contents of which need not be stated at this time. On the motion for new trial Haskell appeared in person and testified and the court after considering his affidavit and his testimony, wrote a memorandum in which he exonerated this juror of any misconduct with reference to the voir dire examination but he came to the following conclusion : “However, the Court has reached the conclusion that during the progress of the trial when emphasis was placed upon the blinking red light on the traffic car [22] called to investigate the accident, Mr. Haskell did associate the ‘blinking red light’ which he had seen several months before with the lawsnit on trial and that he did make deduction of facts which he took into consideration in arriving at a verdict in the case, although he did not reveal such facts to his fellow jurors. ’ ’ The trial judge then referred to Kunk v. Howell, 40 Tenn.App. 183, 289 S.W.2d 874, and Held that, although he could not criticize this juror too severely by reason of his lack of court procedure, he should have spoken up when he realized that he had knowledge of some of the facts in regard to this accident and that his failure to do so made him an improper juror on the case. The Court held also that the harmless error statute did not apply because there was involved the question of a constitutional right to a fair and impartial trial, citing Durham v. State, 182 Tenn. 577, 188 S.W.2d 555, 160 A.L.R. 746. In the Court of Appeals the battle was waged on the question of whether or not the trial judge was correct in his conclusion as to whether or not this man was a fair and impartial juror. The Court of Appeals accordingly considered the affidavit-and the testimony of this juror on the motion for a new trial and reached the conclusion that the trial judge was in error and as a result thereof it reinstated the verdict in favor of the defendant on the first trial. The Court of Appeals expressly held that the trial judge had abused his discretion. The question is not free from doubt and when the petition for certiorari first came to our attention, we declined to grant the petition. On further consideration, however, of the conflict, either apparent or real, between the statement in the affidavit of this juror and his testi [23] mony on the stand as well as between parts of bis testimony measured against other parts, we have concluded that there is material evidence to support the action of the trial judge; especially in view of his more advantageous position of having been able to see and observe the juror as he testified in open court on the motion for a new trial. The rule is well established that where there is some material evidence to support the finding of the trial judge on matters of this land, his action is conclusive on the appellate courts. Knoxville Iron Co. v. Pace, 101 Tenn. 476, 48 S.W. 232; Hall-Moody Institute v. Copass, 108 Tenn. 582, 69 S.W. 327; Gulf Refining Co. v. Frazier, 15 Tenn.App. 662; Stanford v. Holloway, 25 Tenn.App. 379, 157 S.W.2d 864; Hamilton v. Carter, 14 Tenn.App. 337; Rice Bros. Auto Co. v. Ely, 27 Tenn. App. 81, 178 S.W.2d 88; Wileman v. Mayor and Aldermen of Town of Tullahoma, 29 Tenn.App. 172, 177, 195 S.W.2d 325. The other principal question discussed by the Court of Appeals relating to the reinstatement of original verdict, therefore, becomes immaterial and need not be further mentioned. We notice that the original defendant Woods appealed and assigned error in the Court of Appeals with reference to the second trial. Those matters, however, are not before us for the reason that such questions have not been preserved as required by T.C.A. sec. 27-823. The judgment here is, therefore, that with reference to the first trial the judgment of the Court of Appeals is reversed and that of the trial court is affirmed. Costs are adjudged against the original defendant Woods.