Brown v. Marker, 40966

• Decision Date: 02 November 1965
• Docket Number: No. 40966,40966
• Citation: 1965 OK 172,410 P.2d 61
• Parties: Richard A. BROWN, Plaintiff in Error, v. Terry Marcella MARKER, a minor, by her father and next friend, Marion R. Marker, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 61

410 P.2d 61

1965 OK 172

Richard A. BROWN, Plaintiff in Error, v. Terry Marcella MARKER, a minor, by her father and next

friend, Marion R. Marker, Defendant in Error.

No. 40966.

Supreme Court of Oklahoma.

Nov. 2, 1965.

Rehearing Denied Jan. 25, 1966.

Syllabus by the Court

1. In the impaneling of a jury for the trial of a civil action the trial court may justifiably conclude that the pasrties have indicated their acceptance of the jury as seated if the parties have successively waived their right to, in turn, exercise peremptory challenges.

2. Determination by trial court that a party's testimony given by deposition contradicted his testimony during the trial of a negligence action as to the rate of speed at which his truck entered highway and that, under statutes as amended (12 O.S.1961, § 447), his deposition could be read as part of his opponent's evidence in chief, appears to have not resulted in prejudicial error under the circumstances.

3. Evidence examined, and Held; That the amount of the jury verdict was fully warranted and sustained in view of the extent of plaintiff's injuries, the resulting crippling and disabling effect thereof to her, her pain and suffering, the duration thereof and the possibility of future operations and the pain and suffering attendant thereto.

Appeal from the District Court of Oklahoma County; W. P. Keen, Trial Judge.

Plaintiff, through her father and next friend, sued defendants alleging personal injuries to have resulted to her from automobile collision said to have been caused by defendant's negligence. From judgment against defendants and order overruling his motion for new trial, defendant Brown appeals. Affirmed.

Burt Johnson, Looney, Watts, Looney, Nichols & Johnson, Oklahoma City, for plaintiff in error.

Dick Bell, Frank Seay, Seminole, and Rinehart & Morrison, Oklahoma City, for defendant in error.

WILLIAMS, Justice.

The appellant here is one of the defendants against whom plaintiff obtained a joint and several judgment in the trial court. In this appeal we refer to him and the defendant in error as defendant and plaintiff, respectively, as they appeared below.

Defendant Brown's first proposition is that the trial court erred in depriving him of two peremptory challenges.

The record in this appeal discloses that the trial judge was disposed to allow separate challenges to defendants Sam E. Dee and Richard A. Brown because of their taking positions adversary to each other. There was no objection to such determination and it is not material here except in its connection with a narration of the facts.

The prospective jury was examined for cause by plaintiff and defendants Dee and Brown and there being no further challenges for cause the court advised the plaintiff that it was time for him to exercise his first peremptory challenge. Plaintiff excused one prospective juror and another such juror was called. After the new juror had been passed for cause by all parties the court advised defendant Dee that it was his time to exercise his peremptory challenge. He waived. The attorney for defendant Brown was advised that it was his turn to peremptorily challenge. He waived his 'first' challenge. Plaintiff was notified that she might exercise her second challenge and she waived. The court ruled that under the circumstances (that satisfaction with the panel was indicated) the parties were not entitled to any further challenges. The right to challenge further was asserted by defendant Brown to no avail and counsel for such defendant dictated into the record the following:

'Comes now the defendant Brown, and for the purpose of the objection to the deprivation of the right of peremptory challenge to this defendant, that it was the understanding that there would be three peremptory challenges given defendant Brown, that we waived one of the three challenges in the voir dire; the other two were not waived. The defendant Brown feels that they have been deprived of two peremptory challenges by reason of their not being able to waive their second or third.'

The record shows that after the jury was sworn and before the opening statements were heard defendant Brown moved for mistrial on the ground that he was denied his second and third peremptory challenges. It also shows that after the taking of the evidence was concluded and before the jury was instructed defendant Brown renewed his motion in the following language:

'Comes now the Defendant Brown and moves again for a mistrial in this case on the grounds that this defendant was deprived of their peremptory challenges No. 2 and No. 3; that an opportunity was not afforded us for the challenges following the waiver of our first challenge; that the defendant fully intended to challenge a Mrs. Norma Cox who sits on the jury as the replacement of Juror Hughes who was excused by peremptory challenge by plaintiff; that the defendant holds records in his file on the information obtained on the entire jury panel prior to the trial; that this juror had been investigated serveral times in the Oklahoma City Police Department; further, that she has lost a child of her own some six years ago and feels that that juror would be detrimental to the interest of Defendant Brown; that there were several other jurors in the courtroom who had still not been called to the box, so no shortage of jurors existed.'

It is said in 3 A.L.R. 2 page 500 that two divergent views exist regarding the right of a party to exercise a peremptory challenge of a juror after the jury has been accepted, namely, (1) that a juror may not be challenged peremptorily after he has been accepted by both sides and (2), that a juror, although accepted, may be challenged peremptorily until he or the jury is sworn to try the case. The decisions of the courts of the various states appear to be at variance on this question. No decision of this jurisdiction precisely in point has been found.

In support of the contention that the waiver of a peremptory challenge does not constitute an implication of acceptance of those jurors in the box at the time the waiver is exercised the defendant calls attention to State v. Brown (1962), 253 Iowa 658, 113 N.W.2d 286; Balfe v. People, 64 Colo. 28, 170 P. 189; Buckley v. Chadwick, Cal.App., 274 P.2d 673; Veach v. McDowell, 133 Ind.App. 628, 184 N.E.2d 149; and Vance v. Richardson, 110 Cal. 414, 42 P. 909.

Plaintiff cites Nicholson v. People, 31 Colo. 53, 71 P. 377, holding that the matter is within the discretion of the trial court, and quotes language from Lebrun v. Boston and M. R. R., 83 N.H. 293, 142 A. 128, to the effect that where the statute provides for alternate challenging and a party decides not to exercise his challenge his failure to do so may be regarded as evidence of his satisfaction with the jurors then drawn.

12 O.S.1961, § 573 provides:

'The plaintiff first, and afterwards the defendant, shall complete his challenges for cause. They may then, in turn, in the same order, have the right to challenge one juror each, until each shall have peremptorily challenged three jurors, but no more.'

It is clear from the language of this section that the challenges must be exercised alternately. When a party is presented with an opportunity to challenge he must either exercise or waive.

In the case before us the attorney for defendant Brown attempted to limit his waiver to his first challenge. The record discloses no statement by the attorney for defendant Brown, nor the attorney for the defendant Dee to the effect that either defendant had accepted the jury. But the implication of acceptance was clearly the result of the waiver of defendants' respective first peremptory challenges followed by a waiver by plaintiff of her second peremptory challenge. This, in effect, is construing the words 'defendant waives his first challengeh to mean 'his first, second and third challenges' provided the plaintiff and the other defendant should thereafter waive their next peremptory challenges in turn. We think that in enacting 12 O.S.1961, § 573 the legislature intended to permit a party to challenge any juror who, to his mind, was not acceptable to him without the necessity of asserting legally sufficient cause for his challenge. However, once that opportunity has been offered, and waived and the jury as seated is not changed by a subsequent challenge by opposing counsel, the statutory mandate has been followed. If a party decides not to exercise his right to challenge at the time his opportunity arises, his conduct evidences that none in the jury box is distasteful to him. When his opponent, acting on that implied accedptance of the jury, also waives the right to so...