On appeal from the Superior Court, Law Division, Monmouth County.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld and Weintraub. For affirmance -- Justices Burling and Jacobs. The opinion of the court was delivered by Oliphant, J. Jacobs, J., joined by Burling, J. (dissenting).
This is an appeal from a judgment entered on a jury verdict in favor of the plaintiff-respondent Constance Wright in the sum of $75,000 for personal injuries and in favor of the plaintiff-respondent, her husband, in the sum of $7,000 for property damage to his automobile and per quod. We certified this appeal here on our own motion, R.R. 1:10-1(a).
The action was one in negligence and arose out of an automobile accident involving an intersectional collision when the car driven by the plaintiff-respondent Mrs. Wright, was struck by the car driven by the defendant-appellant Bernstein. Mrs. Wright received unusually severe injuries.
Since we have concluded that the judgment must be reversed because of infirmities in the manner in which the jury was impaneled, we find it unnecessary to detail the proofs as to the nature of the collision and the extent and severity of the injuries, although the argument is advanced on this appeal that the judgments are excessive and contrary to the weight of the evidence.
The trial below was commenced on May 21, 1956, on which day 12 persons were selected to fill the jury box and counsel for the plaintiff proceeded to interrogate each juror individually with respect to his or her occupation; Juror No. 6, Charles L. Shibla, stated he was an electronics engineer employed at the Signal Corps Laboratories at Fort Monmouth. Counsel then addressed general questions to this panel as to whether they would be prejudiced against a person who sued to recover damages for personal injuries, or whether or not they would be prejudiced by the fact that the plaintiff had been divorced from her first husband and then remarried; then followed a series of general questions as to whether any of the jurors had been represented by counsel or any member of his firm, or whether they were friends or related to any of the party litigants. Jurors Nos. 9 and 10 were excused by consent because they were personal friends of the plaintiffs. Each side used a number of peremptory challenges to excuse certain members of the panel;
then defense counsel addressed the following question to the panel:
"Mr. Pindar: Have any of you ever been involved or close members of your family been involved in an accident out of which lawsuit arose?"
Several jurors raised their hands, and counsel then interrogated Juror No. 6, Charles L. Shibla, as follows:
"Q. How about you? A. Oh, three or four years ago. My mother.
Q. Seriously? A. She was not injured. It was property damage.
After one or two more excuses the selection of the jury was completed and it was sworn, and the court recessed until the next morning.
On Tuesday, May 22, 1956, when the court reconvened, it developed that Juror No. 5 had to be excused because of illness, and as a result of this a mistrial was declared, the entire jury discharged and returned to the jury room. The panel returned and a new jury was put in the box. Counsel noted that there were a number who had been selected or rejected from the jury impaneled and sworn the preceding day. Counsel for both parties, as well as the court, merely noted the fact, and those previously accepted remained and those excused were again excused.
Then counsel for the plaintiff directed the following questions to Shibla, who was now Juror No. 5:
"Q. Mr. Shibla, you are -- well, you were accepted yesterday, weren't you? A. Yes, sir.
Q. I thought I recognized your face, but I didn't get the name."
Mr. Parsons, counsel for the plaintiff questioned the jury generally as follows:
"Mr. Parsons: There are several of you members of the jury as you are now constituted to whom we addressed questions yesterday. Because there are new members I desire to ask you all if any of you have any answers to these questions will you please speak up, because
as the Court has indicated it's a case of importance to the plaintiffs and the Court has indicated an importance to the defendant. May I ask you, in the first place, as was indicated yesterday, and some of you sat, but to you new members sitting on this jury, have any of you any prejudice of any kind against a person who is injured in an automobile accident and then brings suit for the damages for the injuries they have sustained? If there is any latent prejudice I wish you would speak up so we could know. Then, I said yesterday, and I think, because I know people have occasionally some bias against it, but do any of you have any prejudice or would you have any prejudice against Mrs. Wright because some 13 or 14 years ago she divorced her husband?"
"May I ask you if any of you have been sued in accident cases? And to save time Mr. Pindar will ask you if any of you have brought suit in accident ...