Brown v. Woolverton

• Decision Date: 15 November 1928
• Docket Number: 6 Div. 919.
• Citation: 121 So. 404,219 Ala. 112
• Parties: BROWN v. WOOLVERTON ET AL.
• Court: Alabama Supreme Court

121 So. 404

219 Ala. 112

BROWN v. WOOLVERTON ET AL.

6 Div. 919.

Supreme Court of Alabama

November 15, 1928

Rehearing Denied March 28, 1929.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages by Maud L. Brown against W. H. Woolverton and Virginia S. Woolverton for personal injuries alleged to have been sustained by plaintiff, as a pedestrian on a street in the city of Birmingham when she was struck by the automobile of defendants. From a judgment for defendants, plaintiff appeals. Affirmed.

Challenge for principal cause is determinable by trial court in exercise of sound discretion.

It appears that defendant W. H. Woolverton was the owner of the automobile by which the plaintiff was stricken, and that the automobile was being driven at the time by defendant Mrs Virginia S. Woolverton.

On the trial, this question was propounded by defendants' counsel to witness W. H. Woolverton:

"Was the car on that afternoon-did you have any business on the afternoon on which this accident occurred, in connection with which your car was being used?"

Plaintiff's objection that the question "calls for a conclusion from the witness, invades the province of the jury," was overruled; and the witness answered, "No." Motion to exclude the answer was likewise overruled.

The following charges were given at defendants' request:

"11. I charge you, gentlemen of the jury, if you are reasonably satisfied from all the evidence in this case that Mrs. Virginia S. Woolverton, on the occasion complained of, used due care in and about the operation of the automobile which she was driving on that occasion, then I charge you the plaintiff is not entitled to recover in this case."

"13. I charge you, gentlemen of the jury, if you are reasonably satisfied from all the evidence in this case that the plaintiff failed to use due care on the occasion complained of, and her failure to use such due care proximately resulted in her alleged injuries and damages on said occasion, then I charge you you cannot find a verdict for the plaintiff in this case."

"12. I charge you, gentlemen of the jury, if you are reasonably satisfied from all the evidence in this case that the plaintiff, herself, was guilty of some negligence in walking across the street at a point other than the intersection on the occasion complained of, which either in whole or in part proximately contributed to her alleged injuries and damages, then I charge you you cannot find a verdict for the plaintiff in this case."

Altman, Taylor & Koenig, of Birmingham, for appellant.

Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, and Brewer Dixon, of Talladega, for appellees.

FOSTER J.

For the purpose of selecting the jury to try this case 24 jurors were brought into court, and plaintiff's counsel questioned them at length as to their connection with defendants' insurance carrier, and with any other such carrier, and their business affairs generally. It developed that one juror (Drake) was a partner with another who conducts a general real estate and insurance business, including casualty coverages of the nature involved in the pending case; that such partnership had no connection with the coverage in question nor the carrier covering the risk; that said partnership had been joined in a suit in the circuit court of Jefferson county with another in a case in which they acted as agents for the other, and were sued by reason of that fact; that W. H. Woolverton, one of the defendants, as a member of the firm of Haley, Woolverton & Haley, had been employed by the principal defendant, and on that account the partnership of which Drake was a member had likewise employed them to defend their interest in the case: that, the firm were not regular counsel for the partnership, but employed in this instance because they represented the principal defendant; and said cause was still pending in said court; that said defendant W. H. Woolverton was engaged in the general practice of law, and sometimes examined abstracts in which said Drake's firm had some connection; that in selecting the jury to try this case, appellant's counsel struck Drake's name first off the panel. Before striking the jury, appellant challenged Drake for cause; the court overruled the challenge and held that the juror was not disqualified; and plaintiff excepted and assigns the ruling for error.

The fact that appellant struck the name of the juror as the panel was being struck does not deprive him of the right to review this action of the court. Birdsong v. State, 47 Ala. 68; Smith v. State, 55 Ala. 1; Dothard v. Denson, 72 Ala. 541.

The important question presented and argued is whether or not the court erred in not sustaining appellant's challenge of the juror Drake on account of the facts set out above. "At common law the grounds for challenge were classified under four heads, as follows: (1) propter honoris respectum; as, if a lord of Parliament be impaneled on a jury, he may be challenged by either party, or he may challenge himself; (2) propter defectum; as if a juryman be an alien born, this is defect of birth; (3) propter affectum, as for suspicion of bias or partiality-this may be either a principal challenge, or to the favor; (4) challenges propter delictum are for some misdemeanor or crime which affects the juror's credit and renders him infamous, as for conviction of treason, felony, perjury, or conspiracy. A challenge propter affectum is of two kinds: a challenge to the favor and for principal cause." 16 R. C. L. 254. The common-law grounds as far as applicable to our system and not changed by statute remain for our guidance. Our statute has added certain grounds of challenge for cause, but they are not exclusive of the common law remaining unchanged. Section 8610 et seq., Code; Birdsong v. State, supra; Smith v. State, supra; Harris v. State, 177 Ala. 17, 59 So. 205; Citizens' L. H. & P. Co. v. Lee, 182 Ala. 561, 62 So. 199; Biggs v. State, 20 Ala. App. 449, 103 So. 706. To justify a challenge for principal cause there must be a statutory ground, or some matter which imports absolute bias or favor, and leaves nothing for the discretion of the court. 16 R. C. L. 255. "Competency under a statute (or for principal cause at common law) is a question of law, but in other cases is a question of fact, or a mixed question of law and fact, to be determined by the trial court in the exercise of a sound discretion, and its decision will not be interfered with, unless clearly shown to have been abused." 35 C.J. 312.

A challenge for favor or bias is to be determined by the trial court as any other question of fact, tried without a jury, and is reviewable on like principles. 35 Corpus Juris, 312, 403, 404; 16 R. C. L. 279, 282, 288; Calhoun v. Hannan, 87 Ala. 277, 6 So. 291; Larkin v. Baty, 111 Ala. 303, 307, 18 So. 666. The decision of the trial court on such question founded on oral evidence is entitled to great weight and will not be interfered with unless clearly erroneous, equivalent to an abuse of discretion. 35 Corpus Juris, 404, 405; 16 R. C. L. 289.

There is no statute in Alabama, nor rule of common law, which makes a juror subject to challenge for principal cause, for the reason that he had employed a party to the suit as an attorney in some other case in court, or that the juror was engaged...