Opinion
No. 33308.
September 26, 1938.
1. JURY.
That juror was a second cousin to one of the defendants was prima facie prejudicial.
2. JURY.
A juror related to one of the parties should not sit in the case unless the relationship is fully disclosed and the parties in the suit voluntarily accept the juror.
3. NEW TRIAL.
The setting aside of verdict was not error where one of jurors was a second cousin to one of the defendants and such juror remained silent when the court asked the jurors being impaneled if any of them were related to any of the parties and neither the plaintiff nor his attorney were aware of such relationship at the time the jury was impaneled.
4. TRIAL.
In action for injuries sustained when truck in which plaintiff was riding collided with approaching truck on bridge, modification of instructions that plaintiff had duty of keeping on the proper side of the bridge and that verdict should be returned for defendant if injury resulted solely from the failure of the plaintiff to stay on the proper side of bridge, by interlining "provided the bridge was not in fact a one way bridge" and "unless the bridge was a one way bridge," was proper, where the two trucks were so nearly the entire width of the bridge that it was highly dangerous for them to pass on the bridge, and the bridge was regarded as a one-way bridge by those familiar with it.
5. APPEAL AND ERROR.
A plaintiff is precluded from questioning the correctness of instructions accepted and used by him.
6. APPEAL AND ERROR.
A person desiring to object to modification of instruction requested by him and to insist that the instruction as originally drawn was correct should have the instruction so marked, and that such person refused to use it.
APPEAL from the circuit court of Monroe county; HON. THOS. H. JOHNSTON, Judge.
Thomas J. Tubb, of West Point, for appellant, Mississippi Public Service Co.
There is no statute in this state which provides that any degree of kinship between a juror and a party litigant makes the juror incompetent. There are very few cases in this jurisdiction upon the question.
In the case of Davis v. Searcy, 79 Miss. 292, 30 So. 823, this court passed upon the relationship of a juror to one of the parties as it affects the verdict. It held that relatives of Searcy were incompetent as jurors and also held that an erroneous instruction had been given and that the verdict of the jury was not an absolute verdict as required by the statute. On all three of these grounds, the court reversed the case. There is very little in this case that would be of help in the question here presented except the fact that a juror related to one of the parties litigant is an incompetent juror.
In the case of Brumfield v. State, 102 Miss. 610, 59 So. 849, one of the jurors was related by affinity to the prosecuting witness. The juror's wife according to the evidence was a double third cousin to the prosecuting witness. The juror and his wife were introduced. They testified that they were neither acquainted with nor aware of their relationship to the prosecuting witness. This court held: "Consequently the juror could not possibly have been influenced thereby," and affirmed the case.
Huggins v. State, 103 Miss. 227, 60 So. 209; 20 R.C.L. 238, pars. 24 and 25.
The burden of proof resting upon the party who seeks a new trial is not satisfied by merely establishing the existence of the facts upon which his application is based; but he must also show that the circumstance of which he complains operated to his prejudice by producing or aiding to produce a verdict less favorable to him than might otherwise have reasonably been rendered.
46 C.J., page 347, sec. 356, page 377, sec. 417, and page 378, sec. 418; Huber v. Lane, 45 Miss. 608.
The authorities all hold that the movant for a new trial must prove not only that his counsel did not know of the facts making the juror incompetent but that the party or litigant himself must show that he did not know such facts. The record on the hearing of the motion for a new trial does not disclose that the plaintiff, Collier, proved or offered any evidence to prove that he did not know that English and Hood were related.
We concede that courts universally hold that close relationship to one of the parties litigant disqualifies a juror, but we contend here that where the juror has been accepted although he ignorantly or unintentionally failed to disclose his relationship to one of the parties litigant but tried the case which resulted in a verdict against his kinsman and where the court on motion for a new trial has unequivocally held that the damages awarded by the verdict of the jury were not inadequate under the proof, then the movant for a new trial cannot show, and so far as this record here goes, has not shown, any harm, hurt, injury or prejudice to this cause because of the juror English having sat upon the jury.
Motion for a new trial in this case by the plaintiff does not show on its face that the plaintiff was in any manner injured or prejudiced by the relationship between the juror, English, and the defendant Hood, and he offered no proof upon the hearing of the motion to establish an injury or prejudice to his cause by virtue of such relationship.
We, therefore, submit that on the showing made by the plaintiff upon a hearing of the motion for a new trial, the motion should have been overruled and that the lower court erred in sustaining said motion and that the lower court erred in overruling appellant's motion upon the last trial to reinstate the judgment entered at the March, 1937, term of court.
The testimony of juror, English, and juror, Kennedy, is in the record and not one word of the testimony offered by each of these jurors goes toward the impeachment of the verdict of the jury but all their testimony goes to sustain the verdict and they were offered as witnesses for that purpose.
46 C.J., page 349, sec. 369, and page 364, sec. 386.
Leftwich Tubb, of Aberdeen, for appellant, Ray Hood.
It was error in the trial court to sustain appellee's motion for a new trial and in setting aside the judgment entered at the March term, 1937. The court will observe that this motion was based on two separate and distinct grounds: the first was that the judgment of $750 was inadequate in amount to the extent that it manifested passion and prejudice on the part of the jury. The second was because of an alleged relationship between Olen English, one of the jurors, and the defendant Ray Hood, and that this relationship was not known to the plaintiff or his counsel at the time the juror was accepted. The motion does not allege that this relationship resulted in any prejudice or injury to the plaintiff.
There is no statute in Mississippi which requires that a juror shall not be related to any of the parties. Chapter 40, Code of 1930, on the subject of Juries, contains all the statutory provisions with reference to the selection and impanelling of juries. These laws are merely directory, but they do provide, among other things, that when a jury is once impaneled and has rendered its verdict, then the lack of qualifications on the part of one or more of the jurors shall not vitiate the verdict.
Sections 2050, 2029, Code of 1930.
The motion in this case does not show on its face that the plaintiff was in any manner injured or prejudiced by the alleged relationship between the juror Olen English and the defendant Ray Hood, and unless the plaintiff was so injured or prejudiced for this reason, then the motion ought to be overruled. The motion ought to go further and allege this injury and prejudice and the proof must also show that the plaintiff was injured and prejudiced by reason of the juror having acted in the case.
46 C.J., sections 355, 356, 401, 402, 403, 417, 418.
Sections 417 and 418 of 46 Corpus Juris, requiring the movant or the complaining party to show prejudice by clear and convincing proof, is supported by many of the courts of the nation.
Haber v. Lane, 45 Miss. 608; Huggins v. State, 103 Miss. 227, 60 So. 209; Brumfield v. State, 102 Miss. 610, 59 So. 849; Long v. State, 163 Miss. 535, 141 So. 591; Gardner v. State, 145 Miss. 215, 110 So. 589; State of the West Virginia v. Harris, 50 L.R.A. (N.S.) 933; Owen v. State, 177 Miss. 488, 171 So. 345.
English did not recognize any relation to the defendant Hood. He was not conscious of any relationship; and, therefore, this alleged relation did not and would not create any bias in him in favor of the defendant Hood.
The testimony of the juror English and also that of juror Kennedy was competent.
46 C.J. 349, sec. 370; Gleason v. Commonwealth, 145 Ky. 128, 140 S.W. 63, Ann. Cas. 1913B 757; 4 Wigmore on Evidence, page 3297, sec. 2354 (4).
We respectfully submit that the proceedings on this motion for a new trial do not disclose that the plaintiff was in any manner prejudiced by his acceptance of the juror Olen English.
The court committed error in overruling appellant's motion to reinstate the judgment rendered at the March term, 1937.
Chicago, St. Louis New Orleans R. Co. v. Doyle, 60 Miss. 977; Ennis v. Y. M.V.R. Co., 118 Miss. 509, 79 So. 73; Edmunds v. Mister, 58 Miss. 765; Evans v. Wenger, 139 Miss. 53, 103 So. 481.
The trial court committed error in giving charge number 7 for the plaintiff. The legislature in this state in Chapter 332 of the Laws of 1932, attempted to regulate and did regulate the use of motor busses and motor trucks upon the public highways in Mississippi; section 9 of this statute has particular reference to the use of motor busses and motor trucks and requires that they "shall be operated on the right hand of a middle line of such highway."
In the case of a collision between motor trucks a presumption of negligence arises against the truck or driver violating the law of the road.
Section 5574, Code of 1930; 3-4 Huddy on Automobiles, sec. 99, pages 163-164, 185; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Clarke v. Hughes, 134 Miss. 377, 99 So. 6; Crystal v. State, 147 Miss. 40, 112 So. 687; Standard Coffee Co. v. Carr, 171 Miss. 714, 157 So. 685; Reid v. McDevitt, 163 Miss. 226, 140 So. 722.
This charge in effect suggests to the jury that it was impossible for these two trucks to pass on the bridge and that therefore, the bridge was a one-way bridge and plaintiff had a right to violate the positive command of the statute which required him to keep his truck on the right hand of the center line of the bridge. The evidence does not support the charge, but supports defendant's theory that the trucks could have passed on the bridge.
Sternberg Dredging Co. v. Screws, 175 Miss. 383, 166 So. 754; 3-4 Huddy on Automobile Law, page 25, and page 34, sec. 12, and
The trial court committed error in modifying charges number 9, 10, 11, 14 and 15, requested by appellant. These instructions, each and all of them, announced sound propositions of law as written and presented to the court. They instructed the jury that it was the duty of the plaintiff or the driver of the automobile or truck in which the plaintiff was riding while crossing Weaver's Creek bridge to keep his said truck to the right of the center of said highway or bridge. But here and at this point the court interlined these words "unless said bridge was a one-way bridge." This was clearly and manifestly grievous error. The court should not have so modified the charges; they were correct as requested. Appellant was entitled to them in the form in which they were presented. The modification complained of greatly weakened and in fact virtually destroyed the effect of the legal propositions for which the defendant contended.
Coleman v. Y. M.V.R. Co., 90 Miss. 629, 43 So. 473; Miss. Cent. R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Masonite Corp. v. Lockridge, 163 Miss. 364, 140 So. 223; Louisville N.O. T.R. Co. v. Sudduth, 70 Miss. 265, 12 So. 205.
Paine Paine, of Aberdeen, for appellees.
We respectfully submit that the action of the trial court in granting a new trial is the exercise of discretion vested in him under the law and unless this discretion has been abused the Supreme Court will not interfere therewith. This has certainly been the rationale of the law of the State of Mississippi and is the law in Mississippi at the present time.
2 R.C.L. 217, sec. 182.
If a member of a jury returning a verdict be related to the party in whose favor it is given, and the relationship be unknown to, and intentionally concealed by, the juror from the other party until after the verdict, a new trial should be granted.
Davis v. Searcy, 79 Miss. 292; 20 R.C.L. 242, sec. 27; State v. Harris, 50 L.R.A. (N.S.) 933; 46 C.J., pages 92 and 93, sec. 51.
The courts in truth are so zealous to protect a party's right to a fair and impartial trial that one court has gone to the extent of holding that the fact that a juror was ignorant of his relationship and accordingly denied any relationship on his preliminary examination was held not to affect the right to a new trial.
Tegarden v. Phillips, 39 N.E. 212; Childress v. Ford, 10 S. M. 25.
How can the court say that the juror, Olan English, was impartial and unbiased, when it is proven that he was closely related to one of the defendants in the case, and when he denied this relationship on his voir dire examination and concealed the fact from the court and the attorneys. Regardless of what he might have stated on his examination as to his motives and good intent it would be a dangerous principle to allow a juror under such circumstances to undo the evil he has done by giving his mental reactions which cannot be controverted by the other party in interest. Especially would this be true in a case where the facts are as in the case at bar when the verdict was exceedingly small for the appellee and when a juror is shown to have gone to such length on his examination to try to defend his action in refusing to make known his relationship to one of the defendants in the case.
The trial court excluded that part of the testimony of the jurors wherein they sought to give evidence as to their own mental operation and the court's action in so doing is upheld by reason and common sense.
46 C.J. 365, sec. 386; Brumfield v. State, 102 Miss. 610; Huggins v. State, 103 Miss. 227.
We call the court's attention to the fact that all of the charges or instructions which were modified, asked by appellant Hood, were then used by appellant Hood and considered by the jury, and we submit that even if the modification was erroneous, by reading these modified instructions to the jury, the appellant cannot complain.
95 Miss. 761; 88 Miss. 265.
We do not admit that such modification of these charges was error. But on the contrary we think the modification of these charges was proper because the court will observe that it was a much disputed fact as to whether this bridge was a one-way bridge or not so far as these two trucks were concerned, loaded as they were, and with the length of each truck and in the position in which appellant Hood had his truck on the wrong side of the road as testified to by appellee and even by some of the witnesses for appellant. Numbers of witnesses for the appellant testified that it was impossible for the two trucks to have passed on this bridge regardless of where the truck, in which the appellee was riding, was located for the reason that appellant Hood's truck and trailer was on the wrong side of the road and so far over on the wrong side of the road in the curve as to blockade the end of the bridge and the right-hand side of the road immediately beyond the bridge.
That proof is also in the record by numbers of witnesses that the bridge was only fifteen feet and four inches in the clear after taking eight inches from the width due to the four-by-fours which were laid on the floor of the bridge inside of the rails of the bridge, and that the hay truck was from seven to eight feet in width including the ends of the bales of the hay, which projected from the sides of the hay truck, and that the pipe truck was a little over seven feet wide. The width of these two trucks clearly indicated that as to them it was a one-way bridge leaving entirely out of consideration the proof by a number of witnesses that runners were on the bridge from one end to the other and had been there for years, so placed that when a car or truck was on these runners that no other truck or car could possibly pass.
As embodied in the first instruction requested by appellee and as recognized by the court in the modification of certain of the appellant's instructions, the question of whether this was a one-way bridge was also a disputed question of fact for the decision of the jury; and if it was a one-way bridge as decided by the jury it could make no difference where on the bridge the truck was, in which appellee was riding, at the time or immediately before the wreck.
Scott v. Mississippi Public Service Co., 178 Miss. 859, 174 So. 573.
Argued orally by T.J. Tubb, and C.L. Tubb, for appellant, and by T.F. Paine, for appellee.
Cleveland Collier, plaintiff in the court below, brought suit against the Mississippi Public Service Company, Ray Hood, Ford, Davis and Bacon, and one, T.R. Schumpert, for personal injuries sustained in a collision between two trucks, being the same collision as was involved in the case of Mississippi Public Service Co. et al. v. Scott, 178 Miss. 859, 174 So. 573. The facts of the case and the principles governing liability are fully set forth and discussed in that case, and it would be neither necessary nor helpful to restate them here. While there are minor differences in the testimony in these two cases, there were such conflicts in the testimony as to leave the matter for the decision of the jury; and the statement in the case cited is sufficient both as to the facts constituting liability and the rules applicable thereto.
In the present case the plaintiff was in the same truck with Scott at the time of his injury, and received injuries at the same time, the extent and character of which were sufficient to sustain the verdict rendered in the trial below. There was a former trial, resulting in a verdict for the plaintiff here in the sum of $750, which verdict was set aside on motion for a new trial, the motion alleging that the verdict was inadequate, and also that one of the jurors in the former case was related to the defendant, Ray Hood, which fact was unknown to the plaintiff and his attorney at the time the jurors were accepted and until after the rendition of the verdict. The court sustained the motion to set aside the verdict and granted a new trial because of the relationship mentioned, and also on liability. In stating his ruling on the motion for a new trial, the court said that if the question were limited to the question of the adequacy of the damages awarded, he would not disturb the verdict, on account of the conflict in the evidence, for that reason alone; but he did sustain the motion, granting a new trial both as to the amount of damages and liability — in other words, granted a complete new trial.
When the court took up the present case for hearing, the plaintiff filed a motion to reinstate the former verdict, alleging that the court erred in setting it aside. The juror in question, who sat on the former trial, admitted that he was a second cousin to one of the defendants, and that he knew of this relation, although he had formerly stated that the relationship was in the third or fourth degree. He later admitted facts which clearly proved the juror and defendant to be second cousins. On the voir dire examination of this juror, and others, the court asked the jurors being empaneled, if any of them were related to any of the parties, to make it known, and the juror in question remained silent. He seems not to have been specifically interrogated individually about the matter, and there is no indication that the plaintiff or his attorney was aware of such relationship at the time the jury was empaneled; the testimony is to the contrary. The judge being present and observing the proceedings in the trial, and being thoroughly familiar with what may be called the atmosphere of the case, is in better position to know whether the plaintiff's cause was prejudiced by the presence of the juror in question, which prima facie was prejudicial because of the relationship mentioned. This the juror denied, but his testimony tends to show that he took an active interest for the plaintiff, arguing for that side of the case in the jury room. The evidence of the juror as to what occurred, and that of another juror introduced, seems to have been excluded. Nevertheless, they were all before the judge; and we think it unfair for a related juror to sit in a case, unless that relationship was fully disclosed, and the parties to the suit voluntarily accepted the juror. Consequently there was no error committed in setting aside the verdict. We think such action was commendable and proper.
At the conclusion of the evidence in the present case there was a motion to exclude the evidence offered by the plaintiff, and to direct a verdict for the defendant, as to Ford, Bacon and Davis; and this was sustained by the court below, it appearing from the evidence on the trial of this case that Ford, Bacon and Davis were agents of the Mississippi Public Service Company in the work they were doing — that they were not independent contractors.
There was also a motion to exclude the evidence offered by the plaintiff against the Mississippi Public Service Company, which was overruled, and, we think, properly.
We do not deem it necessary to discuss the question of the independent contractors, so far as Schumpert and Hood are concerned, since the evidence in this case is ample to sustain the theory that they were servants of the Mississippi Public Service Company as held in the former case of Mississippi Public Service Company v. Scott, supra.
The defendant requested a number of instructions on the duty of the plaintiff to keep on the proper side of the highway and bridge at the time of the collision; and that if the injury resulted solely from the failure of the plaintiff to stay on the proper side of the highway and bridge, the jury would return a verdict for the defendant. The court modified several of these instructions by interlining "provided the bridge was not in fact a one way bridge," and in others, "unless the bridge was a one way bridge." The evidence in the case showed that one of the trucks was eight feet wide, the other seven feet, and that the bridge was either fifteen and a half or sixteen feet wide; that the truck in which plaintiff was riding was loaded with hay so placed that the load extended approximately one foot beyond the sides of the truck. Taken together, the two trucks were so nearly the entire width of the bridge that it was highly dangerous for them to undertake to pass on the bridge, especially as the proof showed that there were four-inch strips on the floor next to the banisters; and also the trucks, so loaded, could not safely pass each other, and there was evidence to warrant the jury in believing the bridge to be a one-way bridge, and that it was so regarded by those familiar with it. Under the facts and circumstances in evidence, we think it was proper for the court to modify the instructions. But regardless of whether or not it was proper, the appellant used the instructions; and under our decisions already rendered, he would be precluded from questioning the correctness of the instructions so accepted and used. See Williams v. State, 95 Miss. 671, 49 So. 513; Louisville, N.O. T. Ry. Co. v. Suddoth, 70 Miss. 265, 12 So. 205; Mississippi Cent. R. Co. v. Hardy, 88 Miss. 732, 41 So. 505.
Under the proper practice, as heretofore pointed out, the person requesting the instruction so modified by the court, if he desires to object to the modification, and insists that the instruction as originally drawn was correct, should have the instruction so marked, and that he refused to use it. Besides, there is nothing in the record to show that appellants objected to the modification at the time it was made, and it would not be permissible to accept and use it on the trial, and then object after a verdict was rendered.
We have considered the case in all its aspects, and find no reason to reverse the judgment, and it is accordingly affirmed.
Affirmed.