Opinion
January 22, 1934.
January 30, 1934.
Practice — Trial — Jury — Selection — Peremptory challenges — Antagonistic interests of defendants — Additional defendants and second additional defendant — Failure to object to jury selected.
1. Where the defendants in a case have antagonistic interests as between themselves, each class of such defendants is entitled to four peremptory challenges, and, therefore, in an action of trespass in which the original defendant brings of record additional defendants, who in turn bring of record a second additional defendant, it is proper procedure to require that challenges to a panel of twenty-eight be made one by plaintiff and one by each of the defendant parties until the list is reduced to twelve. [32-3]
2. A party has no standing to object to the refusal of a new trial on the ground that the procedure as to challenges to a jury panel was improper where, when the panel is reduced to twelve jurors, no objection is made to any of those selected and placed in the jury box. [33]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 63, Jan. T., 1934, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1932, No. 1617, in case of James Moffatt v. City of Carbondale, original defendant, Alex Modad, Hassan Modad and Najaen Modad, additional defendants, and The First National Bank of Carbondale, additional defendant. Order affirmed.
Trespass for personal injuries. Before LEACH, J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for defendants. Plaintiff appealed.
Error assigned, inter alia, was refusal of new trial, quoting record.
P. L. Walsh, of Walsh Fadden, for appellant.
Joseph P. Brennan, with him J. E. Brennan, City Solicitor, for defendant, appellee.
Harold A. Scragg, for additional defendants, appellees.
Robert D. Stuart and Cornelius B. Comegys, for second additional defendant, appellee.
Argued January 22, 1934.
Appellees have filed a motion to quash this case on the ground that the appeal was taken before entry of judgment on the verdict. Although the reason alleged is technically sound, as stated at the argument the only effect of quashing the appeal at this time would be to postpone our consideration of the case, and as further delay is not desired, the motion is accordingly refused.
Plaintiff appeals from refusal of the court below to award a new trial after verdict for defendants in an action of trespass to recover damages for personal injuries resulting from a fall on an icy sidewalk. The original defendant, City of Carbondale, brought upon the record as additional defendants the brothers Modad, who in turn issued scire facias to bring in the First National Bank of Carbondale as second additional defendant. As ground for asking a new trial, appellant contends he was prejudiced by the method used in challenging the panel of jurors drawn in this case.
Twenty-eight jurors were drawn in the panel. Under objection from plaintiff, the trial judge directed that challenges be made one by plaintiff and one by each of the defendant parties until the list was reduced to twelve. In this way plaintiff received four challenges and defendants, together, twelve. This procedure was in accord with Shaw v. Megargee, 307 Pa. 447, and was proper in this instance, as the interests of all the parties defendant were adverse.
However, plaintiff has no standing to object to the refusal of the lower court to award a new trial. When the panel was reduced to twelve jurors, no objection was made to any of those selected and placed in the jury box. Indeed, at the argument before this court, counsel admitted they were unexceptionable. Plaintiff was accordingly not injured by any apparent inequality in the number of challenges exercised and cannot be heard to complain now. He "is entitled to an impartial jury, but not to any particular juror or jurors": Com. v. Crow, 303 Pa. 91, 100.
As no other questions are raised for our consideration, the order of the court below refusing the motion for new trial is affirmed.