Andras v. Marcyoniak

Citation13 Mass.App.Ct. 1043,433 N.E.2d 1260
PartiesRobert ANDRAS, Jr. et al. v. Paul MARCYONIAK.
Decision Date08 June 1982
CourtAppeals Court of Massachusetts

Louis Kerlinsky, Springfield, for plaintiffs.

Robert L. Leonard, Springfield, for defendant.

Before GOODMAN, CUTTER and GREANEY, JJ.

RESCRIPT.

Andras and his father brought this action against the defendant. In separate counts, Andras sought damages for injuries alleged to have been caused by the defendant's negligence, and his father sought damages for medical expenses paid for his son in connection with the injuries. In empanelling the jury on June 3, 1980, the judge ruled that the plaintiffs were entitled to five peremptory challenges: four under G.L. c. 234, § 29, as appearing in St.1979, c. 344, § 10, plus one additional challenge because fourteen jurors were empanelled, as provided by Mass.R.Civ.P. 47(b), 365 Mass. 812 (1974). The jury returned a verdict for the defendant and judgment was thereafter entered on the verdict. The plaintiffs' motion for a new trial was denied. The plaintiffs appealed, arguing that the judge's ruling gave them fewer than the required number of peremptory challenges, and that this defect constitutes reversible error.

Since there are two plaintiffs in the case, with separate claims, there is no question that Andras and his father were each entitled to four peremptory challenges under G.L. c. 234, § 29, as amended, and one additional challenge under Mass.R.Civ.P. 47(b). Kabatchnick v. Hanover-Elm Bldg. Corp., 331 Mass. 366, 369-370, 119 N.E.2d 169 (1954). There is also no question that the right to exercise peremptory challenges "is a valuable one, and where, as here, a party is deprived of its exercise he has a just cause of complaint." Id. at 370-371, 119 N.E.2d 169, and cases cited. It does not necessarily follow, however, that the denial of the correct number of peremptory challenges constitutes by itself ground for reversal in this case.

As an initial matter, it is not clear that the plaintiffs' objection to the judge's ruling was sufficiently specific to preserve the point for review. During the colloquy which took place after fourteen prospective jurors were presented for questioning, plaintiffs' counsel did not call to the judge's attention that the number of peremptory challenges had been miscalculated. At that juncture, counsel for the plaintiffs was advised by the judge that his challenges "are limited to five (there) being fourteen (jurors)," to which he merely responded "(c)ounsel wishes to reserve his rights." A more complete and straightforward explanation by plaintiffs' counsel at this point might well have averted the problem and this appeal.

Even if we give the plaintiffs the benefit of the doubt on the adequacy of the objection, however, a new trial is not required. After the first fourteen prospective jurors were presented, and before the plaintiffs exercised any challenges, the defendant volunteered that he was content with the jury. Cf. Superior Court Rule 6 (1974). The plaintiffs then exercised four peremptory challenges, and were also permitted one challenge for cause. When those jurors were replaced, the plaintiffs stated that they were satisfied with the jury, as did the defendant. At this point, however, the plaintiffs still possessed one peremptory challenge which they had not exercised. Even in light of the judge's ruling, that fact is not explained by the plaintiffs' argument that their counsel had held one challenge in reserve in case they were presented with a juror whom they definitely wished to excuse. Since this was, in any event, the plaintiffs' last chance to use that challenge, we can assume that it was a matter of choice not to do so. Thus, since the plaintiffs did not even exhaust all the challenges which they were allowed, the judge's failure to allow more was harmless error in the circumstances. "(A) refusal to allow the proper number of peremptory challenges (is) regarded as immaterial in the absence of a showing that the party affected was required to accept one or more jurors whom he wished to challenge" (Tamburello v. Welch, 392 S.W.2d 114, 116 (Tex.1965)), or in...

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5 cases
  • Demoulas v. Demoulas
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 22 Diciembre 1998
    ...the absence of a showing that the ruling affected the jury's verdict in some material way. Id. at 117-118." Andras v. Marcyoniak, 13 Mass.App.Ct. 1043, 1044, 433 N.E.2d 1260 (1982), citing Upchurch v. Barnes, 197 So.2d 26, 27-28 (Fla.Dist.Ct.App.1967). Cf. Rickett v. Hayes, 256 Ark. 893, 89......
  • Beaupre v. Smith & Assoc.
    • United States
    • Appeals Court of Massachusetts
    • 5 Mayo 2000
    ...of the correct number of peremptory challenges [does not] constitute[] by itself ground for reversal . . . ." Andras v. Marcyoniak, 13 Mass. App. Ct. 1043, 1043 (1982). Neither CSA nor Smith has shown, as they must even if an error in this regard occurred, that "the ruling affected the jury......
  • In re CF Smith & Associates, Inc.
    • United States
    • U.S. Bankruptcy Court — District of Massachusetts
    • 24 Junio 1999
    ...a showing that the party affected was required to accept one or more jurors whom he wished to challenge." Andras v. Marcyoniak, 13 Mass. App.Ct. 1043, 433 N.E.2d 1260, 1262 (1982) (quoting from Tamburello v. Welch, 392 S.W.2d 114, 116 (Tex.1965)), rev. denied, 386 Mass. 1102, 440 N.E.2d 117......
  • Rosenthal v. Weckstein
    • United States
    • Appeals Court of Massachusetts
    • 17 Enero 1985
    ...claims. See n. 2, supra. They were therefore entitled to four peremptory challenges each under G.L.c. 234, § 29. Andras v. Marcyoniak, 13 Mass.App. 1043, 433 N.E.2d 1260 (1982).8 The jury first seated consisted of five men and seven women. The jury who heard the case comprised three men and......
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