Bishop v. Nicholson

• Decision Date: 13 June 1928
• Docket Number: 12469.
• Citation: 143 S.E. 802,146 S.C. 245
• Parties: BISHOP v. NICHOLSON.
• Court: South Carolina Supreme Court

143 S.E. 802

146 S.C. 245

BISHOP v. NICHOLSON.

No. 12469.

Supreme Court of South Carolina

June 13, 1928

Appeal from Common Pleas Circuit Court of Union County; T. S. Sease Judge.

Action by L. G. Bishop against Emslie Nicholson. Verdict for defendant, and from an order granting a new trial, he appeals. Affirmed.

Cothran J., dissenting.

Sawyer & Kennedy, of Union, and Elliott & McLain, of Columbia, for appellant.

Mendel L. Smith, of Camden, and Jno. K. Hamblin, of Union, for respondent.

WATTS C.J.

This is an appeal from an order of his honor Judge Sease granting a new trial. Judge Sease's order is:

"The above-entitled case came on to be heard at the May term of court, 1927. At the call of the above-entitled case for trial, plaintiff's counsel requested the presiding judge to sound the jury as to relationship and interest. It was brought to the attention of the court that the defendant Emslie Nicholson, was president or general manager of manufacturing establishments in Union county, and the court held that any man that is employed in said manufacturing establishments over which the defendant, Emslie Nicholson, was in charge, that the said jury should be excused, and it was announced by the court that all such jurors employed by the various manufacturing establishments over which the defendant, Emslie Nicholson, was manager or president, should stand up and be excused from serving upon the above-entitled case, whereupon several jurors stood up, and Mr. H. L. Reeves in his affidavit says that he stood in the courtroom, but through error his name was placed on the jury list to strike.

Notwithstanding this fact, H. L. Reeves was selected on the jury, served throughout the trial, and rendered a verdict in favor of the defendant, Emslie Nicholson. Thereafter a motion was made upon three grounds. Among them was the ground that the plaintiff's counsel and plaintiff did not know that H. L. Reeves worked at Ottaray Mill, which is one of the chain of manufacturing establishments over which the defendant, Emslie Nicholson, is manager or president, and did not know this fact until after the verdict was rendered. Affidavits were submitted in the matter. I am of the opinion that there should be a new trial in the above-entitled case on the ground that H. L. Reeves should not have been a member of the jury. I hold that he should have been excused, and I am satisfied that plaintiff and his counsel used due diligence in trying to ascertain if H. L. Reeves did work at Ottaray Mill, one of the chain of the manufacturing establishments over which the defendant, Emslie Nicholson, was manager or president.

It is therefore ordered, adjudged, and decreed that a new trial be and the same is hereby granted to the plaintiff against the defendant in the above-entitled case. As to the other grounds, they are overruled."

The exceptions are overruled. Judge Sease tried the case and knew all about it, and he granted a new trial, and I do not wish to substitute my opinion for his. He committed no error.

The judgment is affirmed.

BLEASE, J. (concurring).

I am of the opinion that Mr. Reeves was not disqualified under the law to serve as a juror in this case because he was an employee of a cotton mill of which the defendant was president. When the presiding Judge publicly announced, however, that any employee of any mill of which the defendant was president would not be allowed to serve on the jury, and no objection was made by the defendant to that ruling of the court, such ruling became "the law of the case." It was the duty, then, of all the parties to see that the jurors who were impaneled were not disqualified to sit. It was the duty of the juror himself, before he was sworn to try the cause, to call the attention of the court to the fact of his employment, which the trial judge had held to be a disqualification. As a firm believer in trial by jury, I know if this great right of the people is to be preserved, the jury box must not only be kept pure, but that each individual juror ought to be above the least suspicion. The matter of granting new trials because of circumstances surrounding the jury under our law is left, where it rightly belongs, very much to the discretion of the trial judge. I cannot find that the judge in this case abused that discretion, and I therefore favor the affirmance of the order of the lower court.

WATTS, C.J., and STABLER and CARTER JJ., concur.

COTHRAN J. (dissenting).

This is an appeal from an order of his honor Judge Sease granting a new trial in an action of libel tried before him, in which the defendant had a verdict. In the plaintiff's motion for a new trial, there was absolutely no complaint as to the admission of evidence, or to the conduct of the judge in any stage of the proceeding. The trial appears for this reason to have been perfectly fair with the exception of the matter complained of, which may be thus explained:

The action was against the defendant in his individual capacity. Upon the call of the case for trial the attorneys for the plaintiff requested the court to inquire whether any of the panel of jurors were employed by any of the mills of which the defendant was the executive head. Counsel for the defendant made no objection, and it appears from the order of the judge granting a new trial, though not in the statement contained in the transcript, that his honor the circuit judge ruled that all such jurors would be excused from serving upon the case. The clerk of court then directed all such jurors to stand "until their names could be taken." To this direction some six or eight jurors, including one Reeves, stood up; the clerk took down the names of all he saw standing, and their names were omitted from the list prepared and presented to the attorneys. By some oversight the name of Reeves appeared on the list, was not stricken by either side; he was sworn as a juror, and served during the trial. After the verdict had been rendered, counsel for the plaintiff for the first time discovered that Reeves was an employee of one of the mills managed by the defendant, and moved for a new trial upon the ground of the error in not omitting his name from the list. The motion was granted upon the grounds:

"That H. L. Reeves should not have been a member of the jury. I hold that he should have been excused, and I am satisfied that plaintiff and his counsel used due diligence in trying to ascertain if H. L. Reeves did work at Ottaray Mills."

From this order the defendant has appealed.

In view of the fact that the trial was had without a single objection, absolutely fairly, the court in my opinion should not disregard the event, except upon the plainest evidence that by an irregularity the ends of justice have not been met, and that the plaintiff and his counsel have not in any way contributed to the complication.

It has been repeatedly held by this court that the fact that a juror on the panel is an employee of a corporation, partly to the action about to be tried, is not a legal disqualification to his serving as a juror upon the case. The rule is clearly laid down in Tucker v. Cotton Mills, 76 S.C. 539. ^[1] Certain jurors were employees of the defendant corporation; they were excused from service upon this ground. Upon appeal by defendant the court said:

"*** We do not regard this fact as a ground for legal disqualification of a juror."

The same ruling, in effect, appears in Gunter v. Mfg. Co., 18 S.C. 462, and in Yarborough v. Electric Co., 100 S.C. 33, 54 S.E. 308, where the above quotation from the Tucker Case is reproduced with approval. The court in the Tucker Case, however, adds this:

"*** Still the circuit court has very large powers as to the conduct of jury trials, including a discretion to excuse a juror for this cause, if the circumstances are such as, in the judgment of the court, would afford any reasonable ground for apprehension of unfairness, and his ruling will not be reversed except for abuse of discretion, which does not appear in this case."

See, also, Crawford v. Traction Co., 126 S.C. 447, 120 S.E. 381, where it is said:

"*** The matter for decision was wholly within the discretionary power of the circuit judge, if there were any circumstances which, in his judgment, would afford reasonable ground for apprehension of unfairness or bias." It would seem from this that something more than the simple fact of employment should appear before this fact should be held to be a ground for excusing the juror even, much less for holding the fact a legal disqualification.

His honor, as appears from his order, acted solely upon the fact of employment, without inquiry as to the circumstances called for in the preceding cases cited. No objection, however, was interposed by counsel for the defendant, who appear to have conceded the evident contention of counsel for the plaintiff that the fact of employment alone was a ground for excusing the jurors so employed. Nor was any question raised whether the same rule of discretionary excuse, applicable to cases in which the corporation was a party, could be invoked where the managing head of the corporation, and not the corporation, was a party in his individual capacity. I think therefore, under the circumstances, the situation is the same as if the jurors had been put upon their voir dire, and that upon their examination as to this ground, and any others, the judge had concluded, in his discretion, that they were not indifferent, and had excused them separatim.

The question which has given me pause is whether the counsel for the plaintiff, in the exercise of ordinary care, could and should have prevented the complication which has arisen which threatens to upset a victory for the defendant fairly won in a contest otherwise...