Albright & Wood, Inc. v. Wallace

• Decision Date: 25 October 1962
• Docket Number: 1 Div. 858
• Citation: 148 So.2d 240,274 Ala. 317
• Parties: ALBRIGHT AND WOOD, INC. v. Rita WALLACE.
• Court: Alabama Supreme Court

Page 240

148 So.2d 240

274 Ala. 317

ALBRIGHT AND WOOD, INC. v. Rita WALLACE.

1 Div. 858.

Supreme Court of Alabama.

Oct. 25, 1962.

Rehearing Denied Jan. 10, 1963.

Johnston, McCall & Johnston, Mobile, for appellant.

Diamond, Engel & Lattof, Mobile, for appellee.

COLEMAN, Justice.

This is an appeal by defendant from judgment for plaintiff, on the verdict of a jury, in action for personal injury.

Assignment 4 asserts that the court erred in overruling defendant's objection to plaintiff's challenge of juror Williams for cause as follows:

'Court: Now the plaintiff is represented by Mr. Ross Diamond and Mr. Mitchell Lattof. The defendant is represented by Johnston, McCall and Johnston. Dan McCall and Bill Johnston are here today trying this case for defendant. Are any of you gentlemen clients of these lawyers or related by blood or marriage to any one of those lawyers I have mentioned?

'Benjamin D. Williams: I am. The firm I am employed by is represented by Mr. Dan McCall.

'Mr. Lattof: I challenge Mr. Williams for cause.

'Mr. McCall: I object to that. That is not sufficient reason for such challenge. challenge.

'Court: Overrule the objection.

'Mr. McCall: We except.'

All that the record shows, even when viewed most strongly against the qualification of juror Williams, is that he was, at the time of the instant trial, a client of one of the attorneys for defendant.

This court has said: 'There is no statute in Alabama, nor rule of common law, which make a juror subject to challenge for principal cause, for the reason that he had employed a party to the suit as an attorney in some other case in court, or that the juror was engaged in a business similar to that involved in the pending controversy. Such matters do not import absolute bias or favor.' (Emphasis supplied.) Brown v. Woolverton, 219 Ala. 112, 115, 121 So. 404, 406, 64 A.L.R. 640.

If a juror is not subject to challenge for principal cause when he is client of the party himself, certainly the juror is not subject to challenge for such cause when he is client, not of the party, but of the party's attorney merely. Under the quoted rule, juror Williams was not subject to challenge for principal cause.

The only remaining ground for disqualifying juror Williams is that he be subject to challenge to the favor. 'A challenge for favor or bias is to be determined by the trial court as any other question of fact, tried without a jury, and is reviewable on like principles. (Citations omitted.) The decision of the trial court on such question founded on oral evidence is entitled to great weight and will not be interfered with unless clearly erroneous, equivalent to an abuse of discretion. (Citation omitted.)' Brown v. Woolverton, supra, at page 115, 121 So. at page 406.

The question then is whether the facts shown as to juror Williams proved favor or bias in fact. The record shows no facts other than as above set out. There is no evidence to support a finding that Williams was in fact biased in favor of or against either party. As a result, a finding that Williams was disqualified is clearly erroneous, and overruling defendant's objection to plaintiff's challenge for cause was error.

We are not persuaded that this action was error without injury. Under our system of selecting a jury in a civil case, the clerk furnishes a list of jurors from which a jury must be obtained by the parties or their attorneys alternately striking one from the list until only twelve remain on the list, the party demanding the jury commencing. § 54, Title 30. It would scarcely be contended that a party was not prejudiced if the opposite party, on his first strike, were permitted to begin by striking two names instead of one, and thereafter the parties struck one each. Such is the result of sustaining plaintiff's challenge to juror Williams. The effect is to allow plaintiff one strike more than the statute gives him.

Whether the trial be in a circuit with more than two judges or not makes no difference. In either case, the challenger is enabled to eliminate the unwanted juror without using a strike, although the juror is not disqualified.

What was said in an earlier case involving striking a jury seems appropriate here, to wit:

'With respect to the nonapplication of rule of practice 45 to this case, it is not the policy of this court to apply that wholesome and useful rule in such a way as to nullify positive laws which can be upheld only by their compulsory observance.' Brilliant Coal Co. v. Barton, 203 Ala. 38, 40, 81 So. 828, 830.

Assignment 5 asserts that the court erred in allowing plaintiff to challenge for cause the juror Ledyard, as follows:

'Mr. Lattof: I'd like the jury questioned as to whether any of them is an agent, servant or employee of the United States Casualty Company, the insurance carrier for defendant.

'Court: Are any of you gentlemen employed by or connected in any way with the United States Casualty Company?

'Mr. Austin E. Ledyard III: I am bonded by them.

'Mr. Lattof: I challenge Mr. Ledyard.

'Mr. McCall: I object to that.

'Court: Overrule.

'Mr. McCall: We except.'

Here again we are faced with the question whether or not the juror is subject to challenge for principal cause or to the favor. We have not found nor have we been cited to any case considering the question whether a juror is subject to challenge because he is 'bonded' by a party directly interested in the result of the suit.

The exact relation between the Casualty Company and Ledyard does not appear. Whether he is principal on a bond executed by...