Brame v. Garwood

• Decision Date: 16 November 1976
• Docket Number: No. 48947,48947
• Citation: 339 So.2d 978
• Parties: William Y. BRAME, Jr. and Mrs. Glemar Brame v. Bruce GARWOOD.
• Court: Mississippi Supreme Court

Page 978

339 So.2d 978

William Y. BRAME, Jr. and Mrs. Glemar Brame v. Bruce GARWOOD.

No. 48947.

Supreme Court of Mississippi.

Nov. 16, 1976.

Rehearing Denied Dec. 14, 1976.

Snow, Covington, Temple & Watts, E. L. Snow, Meridian, for appellants.

Singley, Minniece, Hamilton, Neville & Hamill, Lawrence W. Rabb, Paul M. Neville, Meridian, for appellee.

Before GILLESPIE, SUGG and BROOM, JJ.

BROOM, Justice, for the Court:

Reduction of a jury to eleven members occurred during trial of this cause in the Circuit Court of Lauderdale County. Garwood (appellee, tenant) was asserting his tort action against Mr. and Mrs. Brame (appellants, landlord) for personal injuries Garwood received in a fall on allegedly defective back steps of the apartment which he rented from the Brames. He received a jury verdict and judgment for $20,000 which we must reverse.

Details of Garwood's fall need not be set forth here. The jury found, as it had a right to do, that a part of the agreement whereby he would rent the apartment from the Brames was the condition and understanding between him and them that they would make specific repairs to the defective steps. According to the jury finding, failure of the Brames to make the specific repairs proximately caused Garwood's injuries.

Facts salient to our resolution of the case are the following. During the fourth day of the trial and after much testimony was presented, one of the regular twelve jurors was excused when she (Mrs. Jordan) disclosed that for personal reasons she could not further serve on the jury. Without any objection, the juror was excused and the thirteenth juror (an alternate) was placed in the jury box, which action is not in issue here. Subsequently, another juror, Mrs. Mayer, discovered that she was closely acquainted with the daughter of the Brames (appellants), and according to the bill of exceptions which is in the record and signed by the circuit judge, 'would be embarrassed to render a verdict . . ..' In chambers the judge with counsel discussed the situation, whereupon counsel for Garwood moved that the court 'excuse her (Mrs. Mayer) and use an eleven man jury.' Counsel for the Brames objected and the court stated:

Well, counsel not agreeing to it, I will excuse her and let you continue with your case over the objection by counsel for the defendant; however, a nine man jury verdict is necessary. It looks like to me the defendant couldn't complain but the plaintiff could; but what the Supreme Court of Mississippi may hold, I don't know. I don't know of a precedent.

Garwood says that any question related to the eleven member jury was waived and not properly preserved because the Brames (appellants) made only a general objection and did not move for a mistrial when the jury was reduced to eleven members. As to the matter of how to preserve such a proposition, Garwood cites United States Fidelity & Guaranty Company v. Smith, 249 Miss. 873, 164 So.2d 462 (1964), and Hyde v. O'Neal, 234 Miss. 112, 105 So.2d 553 (1958). Neither of these cases deals with similar facts or a question of constitutional proportions such as is before us here where under our well established case law litigants have a right to trial by a jury composed of twelve members. Also cited is Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). That case alludes to Christ and his twelve apostles and states that the jury at common law was composed of precisely twelve. Williams further states that the twelve member jury concept is a historical accident and without significance 'except to mystics.' We are not controlled by Williams here because it rested upon a statute which provided for a six member jury....