Alexander v. R. D. Grier & Sons Co., Inc.

• Citation: 30 A.2d 757,181 Md. 415
• Decision Date: 16 March 1943
• Docket Number: 40.
• Parties: ALEXANDER, Acting Insurance Commissioner of Pennsylvania, v. R. D. GRIER & SONS CO., Inc.
• Court: Court of Appeals of Maryland

30 A.2d 757

181 Md. 415

ALEXANDER, Acting Insurance Commissioner of Pennsylvania, v. R. D. GRIER & SONS CO., Inc.

No. 40.

Court of Appeals of Maryland

March 16, 1943

Appeal from Circuit Court, Wicomico County; James M. Crockett and T Sangston Insley, Judges.

Action by Ralph H. Alexander, as Acting Insurance Commissioner of the Commonwealth of Pennsylvania, statutory liquidator of the Keystone Indemnity Exchange, dissolved, against R. D. Grier & Sons Co., Inc., to enforce an assessment against defendant as a subscriber in the dissolved corporation. Judgment for defendant, and plaintiff appeals.

Reversed and new trial awarded.

Wesley E. Thawley, of Denton (Ralph P. Dunn, of Washington, D. C on the brief), for appellant.

F. W C. Webb, of Salisbury (Woodcock, Webb, Bounds & Travers and Curtis W. Long, all of Salisbury, on the brief), for appellee.

Before SLOAN, C.J. and DELAPLAINE, COLLINS, MARBURY, GRASON, MELVIN, and ADAMS, JJ.

ADAMS Judge.

This is an action at law instituted by the appellant (plaintiff below) as Statutory Liquidator of Keystone Indemnity Exchange, which was a reciprocal insurance exchange of the State of Pennsylvania. The defendant, R. D. Grier & Sons Company, Inc., is a corporation of the State of Maryland.

On May 18, 1933, the Court of Common Pleas of Dauphin County, Pennsylvania, ordered the liquidation of the said Exchange and on September 12, 1938, decreed that the subscribers to said Exchange holding policies issued between April 9, 1929, and May 18, 1933, should pay an assessment equal to one annual deposit premium on each such policy issued to them. Pursuant to this decree the plaintiff instituted this suit against the defendant to recover the assessment on twenty-two policies issued to the defendant during the period from April 9, 1929, to May 18, 1933. The aggregate of annual deposit premiums on these twenty-two policies in suit is $888.09.

After issue joined, the case came on for trial before the Court and a jury. When the case was called for trial, before the plaintiff had made his strikes from the panel of jurors submitted to him, plaintiff made a motion to be permitted to examine the jurors upon their voir dire, which motion was overruled by the Court and an exception noted. The jury returned a verdict in favor of the defendant and the exception of plaintiff to the refusal of the Court to allow examination of the jurors on their voir dire constitutes the only exception on this appeal.

The exception was reserved at the beginning of the trial after the Court had instructed the clerk to hand a panel of twenty jurors to counsel and before plaintiff had exercised his right to make four strikes from the panel of twenty. The motion was as follows:

'Your Honors, I want to make a motion to examine the entire panel of petit jurors upon their voir dire as to whether or not they, or any of their immediate families, are assessables in the Keystone Indemnity Exchange.'

The Trial Court overruled said motion to which ruling plaintiff excepted. Thereafter plaintiff made four strikes from the panel of twenty jurors, the defendant did likewise and the jury were impaneled and sworn.

The question presented here is a very narrow one; namely, whether the Court erred, to the prejudice of the plaintiff, in overruling plaintiff's motion to examine the entire panel of jurors on their voir dire before the drawing of twenty jurors from the panel to submit to the respective parties in the cause, to exercise their right to strike. The case is to be distinguished from those cases in which no request for voir dire examination was made and no attempt was made to challenge a juror for cause, and it was discovered after verdict that some member or members of the jury impaneled had been subject to challenge. Examples of such cases are: Johns v. Hodges, 60 Md. 215, 45 Am.Rep. 722; Busey v. State, 85 Md. 115, 36 A. 257; Young v. State, 90 Md. 579, 45 A. 531; Hansel v. Collins, 180 Md. 100, 23 A.2d 1.

The very purpose of the voir dire examination is to afford the parties to the suit an opportunity to ascertain if there is cause for challenge of any prospective juror, and if the right is not exercised, the party failing to challenge any prospective juror and thereafter seeking to set aside a verdict on the ground that a juror was disqualified, carries a heavy burden of showing that grounds of challenge were unknown to him and could not have been ascertained in the exercise of reasonable diligence.

In Johns v. Hodges, 60 Md. 215, at page 222, 45 Am.Rep. 722, the Court said: 'That men may be, and are, summoned, who are not contemplated by the law as the subjects of jury duty, is common experience. And as the consequences of such an error can be readily obviated by inquiry and challenge when they come to be sworn, it is laches not to avail of so simple and efficacious a means of protection, where prejudice is apprehended or may be rendered impossible, as examination and challenge before the jury is empaneled.'

The case of Busey v. State, 85 Md. 115, 36 A. 257, is authority for the proposition that it is a general rule that if a party knows a cause of challenge and does not exercise it at the proper time, that is, while the jury is being impaneled, he cannot avail himself of the defect afterwards.

As in Young v. State, 90 Md. 579, at page 585, 45 A. 531, it was said: '* * * the general practice that prevails here, and in most, if not all, of the courts having our system of jurisprudence, is that challenges for cause must be made before the juror is sworn; and that rule is without exception in all cases where the party objecting to the qualifications of the juror had knowledge at that time of the circumstances tending to disqualify, or could have known of them by the exercise of proper diligence in making inquiries or otherwise; and if, with such knowledge, express or implied, he fails to make his challenge before the juror is sworn, it must be deemed to have been waived, no matter how good his cause of challenge may be.'

Under our system of jurisprudence, the right to a jury trial of controverted issues, implies a trial by an impartial, unbiased and qualified jury. The great purpose of the right of challenge, is to secure a fair and impartial trial. Waters v. State, 51 Md. 430.

A defendant has the absolute and unqualified right to have his case heard before a fair and impartial jury, Newton v State, 147 Md. 71, 127 A. 123, and the purpose of examination of jurors is to determine possible cause for disqualification by reason of bias or prejudice or otherwise, Cohen v. State, 173 Md. 216, 195 A. 532, 196 A. 819, and no sound reason can be urged why bias or prejudice, whether for or against the challenging party, should not be sufficient cause for challenge. For bias or prejudice will prevent a fair and impartial...