Birmingham Baptist Hospital v. Orange

• Decision Date: 08 May 1969
• Docket Number: 6 Div. 486
• Citation: 223 So.2d 279,284 Ala. 160
• Parties: BIRMINGHAM BAPTIST HOSPITAL v. Robert H. ORANGE.
• Court: Alabama Supreme Court

Page 279

223 So.2d 279

284 Ala. 160

BIRMINGHAM BAPTIST HOSPITAL v. Robert H. ORANGE.

6 Div. 486.

Supreme Court of Alabama.

May 8, 1969.

Wm. Gerald Stone and Huey, Stone & Patton, Bessemer, for appellant.

Jas. L. Shores, Jr., Clifford Emond, Jr., F. Eugene Wirwahn, Johnston & Shores and Emond & Emond, Birmingham, for appellee.

MERRILL, Justice.

Appellant appeals from a judgment against it for personal injuries received by appellee as a result of an operation. The verdict was for $600,000; the trial court granted appellant a new trial unless there was a remittitur of damages in excess of $425,000, and appellee filed the remittitur.

Assignments of error 8 through 20 are concerned with the overruling of appellant's objections to the sustaining of challenges for cause by appellee of seven different jurors, all of whom were members of the Baptist Denomination.

After hearing an explanation of the relationship of the appellant Hospital to the Birmingham Baptist Association, individual Baptist churches and their members; that the members of the separate Baptist churches affiliated with the Birmingham Baptist Association send 'delegates' to the annual meeting of the Association; that the Association elects trustees of the Hospital, which is a non-profit charitable organization; that there is no contractual relationship between the members, churches, Association and the Hospital; that all contributions are voluntary; and the trustees operate the Hospital, the trial court stated:

'I am inclined to think that a member of a Baptist church which sends a delegate, or was in the habit of sending delegates to the Birmingham Baptist Association now are, at the present time, disqualified on the grounds that he is a participant in the managing of the hospital.'

It was then ascertained that the plaintiff was a Baptist. After further colloquy, the record shows:

'MR. STONE: Now, as I understand it, your Honor, is going to hold that the members of the Baptist church are not qualified to sit on this case.

'THE COURT: I think so, provided that they are a member of a church which is now standing in the membership of the Birmingham Baptist Association.'

Later, the trial court asked all jurors who were members of Baptist churches which send delegates to the Birmingham Baptist Association to stand and none stood. Then appellant stipulated that certain named Baptist churches, of which certain jurors said they were members, were affiliated with the Birmingham Baptist Association based upon the 'Annual' of the Association published in 1965.

Assignment of error 10, argued first by appellant, reads:

'The Court erred in overruling this defendant's Objection to the Challenge of the Plaintiff of William Herschell Crook, who was on the panel from which the jury was to be struck for the trial of this cause, because he was a member of a Baptist Church affiliated with the Birmingham Baptist Association to which such Church of which he was a member sent delegates.'

Mr. Crook, the prospective juror, first joined the Berney Points Baptist Church about forty years ago, but for the past twenty-five years he has attended the West End Baptist Church about once a year. He is not a member of that church and, consequently, had no right to vote on the business of the church and he has not done so. If any delegates went to the said Birmingham Baptist Association he did not know who they were. He did not know any of the trustees of this defendant. He never voted to elect any of them and never exercised any supervision or control over them or this defendant. The fact that he held a membership in the Berney Points Church, which might have been sending delegates to the Birmingham Baptist Association who may have voted to elect the trustees of this defendant, would not in any way influence or bias his decision in considering the evidence in this case. He knew of no reason why he could not render a fair and impartial verdict in the case.

Jurors East, Gray, Houston, Leonard and Mitchell were examined individually and each testified in substance as follows: That they did not know whether their church was a member of said Association or whether it sent delegates to said Association; that they never recalled voting for any delegates to the Association; that they did not have anything to gain or lose as to whether a verdict was rendered for or against this defendant; and if their church did in fact send delegates to said Association such would not in any way affect their ability to sit on the case and judge the evidence fairly and impartially without regard for the parties involved. None of them knew of any reason why they might be biased or prejudiced in any way for or against any of the parties. Appellee's challenge for cause was sustained as to each of the six-named jurors over appellant's objection.

A regular panel of twenty-four jurors, plus sixteen 'extras,' made up the list from which the jury would be chosen for the trial of this case. The cause for which each of the six jurors was challenged was 'because he is a member of the Baptist church which is a member of the Baptist Association.'

On the final panel of twenty-four names from which the jury was finally selected were eight Baptists, of whom five were members of Baptist churches which were affiliated with the Birmingham Baptist Association. Three of these were struck, leaving five Baptists on the jury which tried the case, and two of those were members of Baptist churches affiliated with the Birmingham Baptist Association.

The fact that jurors subject to challenge for cause are on the list from which the jury is chosen or that they serve on the jury is not reversible error, because a party may waive his right to challenge for cause if he so desires. Hudson v. Stripling, 261 Ala. 196, 73 So.2d 514, and cases there cited.

Here, we are concerned with the six jurors who were challenged for cause over appellant's objection merely because they were members of Baptist churches which were affiliated with the Birmingham Baptist Association which in turn elected trustees of the Birmingham Baptist Hospital.

The law governing a situation like this, involving church membership only of jurors, is set out in Tucker v. Houston, 216 Ala. 43, 112 So. 360, where this court said:

'Birmingham College, now known as Birmingham--Southern College, a Methodist institution, was named in the will of deceased as residuary legatee, and this made it the largest beneficiary under the will: Appellants sought to challenge a number of jurors on the ground that they were members of the Methodist Church. As members of the Methodist Church, these jurors had no pecuniary interest in the issues involved, and the court committed no error in overruling appellants' objection to these jurors. Ex parte State Bar Association, 92 Ala. 113, 8 So. 768 (, 12 L.R.A. 134); Burdine v. Grand Lodge, 37 Ala. 478.'

Appellee argues that the Tucker case does apply because this merely affirmed the exercise of the discretion of the trial court and states in brief '* * * this Court has never reversed for the exclusion of jurors who might have some possible bias. There have been reversals only where the jurors were not excluded, and not always in those cases.' Appellee evidently overlooked Albright and Wood, Inc. v. Wallace, 274 Ala. 317, 148 So.2d 240. There, we held that the finding that juror Williams was subject to challenge for cause was erroneous, and overruling the defendant's objection to plaintiff's challenge for cause was error, and we said:

'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...