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Kiernan v. Schaik

June 24, 1965

JAMES KIERNAN AND MARY KIERNAN, APPELLANTS,
v.
GERALD VAN SCHAIK, T/A VAN'S ATLANTIC STATION.



Author: Freedman

Before HASTIE and FREEDMAN, Circuit Judges, and WEBER, District Judge.

FREEDMAN, Circuit Judge.

This is a suit for damages arising out of a fall on the sidewalk entrance to defendant's gas station. There have been two trials; at the first trial the jury disagreed and on the second trial some months later before the same judge a verdict was returned for the defendant. Plaintiffs unsuccessfully sought a new trial on the sole ground that the verdict was against the weight of the evidence.

On this appeal plaintiffs make no complaint against the denial of their motion for new trial, but assign as error the trial judge's rejection of the questions they submitted to him for the voir dire .

The error was not waived because it was not assigned in the motion for new trial. Objections to rulings made at trial are ripe for review and need not be reiterated in the court below on a motion for new trial. This is equally true whether no such motion is made or the objection is not included as a ground for new trial when a motion is filed. See 6 Moore, Federal Practice (2d ed. 1953), 59.14*fn1

The trial judge denied plaintiffs' request that he put the following questions to the prospective jurors on their voir dire:

"1. Are any of you employed by or stockholders in an insurance company which is engaged in the casualty insurance business?

"2. Are any of you engaged in the general insurance agency business or are any of you an agent for a casualty insurance company?

"3. Have any of you ever worked as a claims investigator or insurance adjuster?

"4. Have any of you read any articles or advertising in periodical publications which tend to indicate a relationship between the amounts of personal injury verdicts and increases in insurance premiums?

"5. (If any of the jurors answer the next preceding question in the affirmative) Notwithstanding any opinion which you might have formed regarding the subject of the advertising or articles just mentioned, would you be able to decide the question of liability and damages in this case solely on the evidence and the law without being influenced by such an opinion?"

While no reasons were specifically given for the ruling, it is apparent from the record that the trial judge refused the requests on three grounds: (1) the practice in the state and federal courts in Delaware is not to conduct any extensive voir dire; (2) Delaware counsel - including those who appeared in this case - subscribe to the services of an investigating agency which supplies them with information on all prospective jurors in the federal and state courts some time before the commencement of the trial sessions; and (3) a prima facie showing was required of the prospective juror's connection with the business of insurance before the questions would be considered.

1. The right to an impartial jury in the federal courts in civil and criminal cases is guaranteed by the Constitution. The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *." Amendment VII preserves "the right of trial by jury" in civil cases, and although the impartiality of the jury is not expressly mentioned it is inherent in the right of trial by jury and is implicit in the requirement of the Fifth Amendment that "No person shall * * * be deprived of life, liberty, or property, without due process of law * * *."

The Federal Rules, which are substantially identical in civil and criminal cases, leave it to the discretion of the court whether the voir dire shall be entrusted to counsel or conducted by the court, and provide that in the latter event the court must permit such supplementary examination by counsel as it deems proper or shall itself submit such additional questions to the prospective jurors*fn2 Here, in the ...


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