Bryan v. Moncrief Furnace Co, (No. 6613.)

• Decision Date: 23 July 1929
• Docket Number: (No. 6613.)
• Citation: 168 Ga. 825,149 S.E. 193
• Parties: BRYAN. v. MONCRIEF FURNACE CO. et al.
• Court: Georgia Supreme Court

168 Ga. 825

149 S.E. 193

BRYAN.

v.MONCRIEF FURNACE CO. et al.

(No. 6613.)

Supreme Court of Georgia.

July 23, 1929.

(Syllabus by the Court.)

Hill, J., and Beck, P. J., dissenting.

Certiorari from Court of Appeals.

Action by Sterling Bryan against the Moncrief Furnace Company and another. Judgment adverse to plaintiff was affirmed by the Court of Appeals (142 S. E. 700, 38 Ga. App. 107), and plaintiff brings certiorari. Reversed.

Ben J. Conyers and J. K. Jordan, both of Atlanta, for plaintiff in error.

Paul S. Etheridge, Harold Hirsch, and Candler & Candler, all of Atlanta, for defendants in error.

HINES, J. Bryan brought suit against Moncrief Furnace Company and Knights of the Ku Klux Klan, both being corporations, for the recovery of damages for a personal injury. Knights of the Ku Klux Klan is a corporation without capital stock, and is a secret organization. Upon the call of said cause for trial in the superior court, counsel for the plaintiff requested the court to purge the jury of all members of the Knights of the Ku Klux Klan, which motion the court overruled, and forced counsel for the plaintiff tostrike the jury without purging therefrom members of such Klan. The case proceeded to trial before a jury, and a verdict adverse to the plaintiff was rendered. He moved for a new trial upon the grounds, among others, that H. M. Butler, Homer S. Reese, and Paul T. Reddick, three of the jurors who rendered said verdict, were members of the Knights of the Ku Klux Klan when said case was tried, and because the court erred in failing to purge the jury of members of said Klan, when requested by his counsel, this request being resisted by counsel for this defendant. The showing in support of the ground of the motion for new trial that three of the jurors who tried the case were members of the Klan need not be set out. The trial judge overruled the motion for new trial, to which ruling the plaintiff excepted, and took the case to the Court of Appeals. That court affirmed the judgment of the trial court, for the reasons assigned in its opinion. Bryan v. Moncrief Furnace Co., 38 Ga. App. 107, 142 S. E. 700. The plaintiff applied for a certiorari, which was granted, and the case is in this court to review the judgment of the Court of Appeals.

1. Did the Court of Appeals err in not deciding whether or not the trial court erred in denying the timely motion of the plaintiff to purge the jury of all members of the Knights of the Ku Klux Klan? "In civil cases and cases of misdemeanors in the superior court, each party may demand a full panel of 24 competent and impartial jurors from which to strike a jury, and when one or more of the regular panel of traverse jurors is absent, or for any reason disqualified, the presiding judge, at the request of counsel for either party, shall cause the panel to be filled by tales jurors to the number of 24, before requiring the parties, or their counsel, to strike a jury." Penal Code 1910, § 858. Under that section and the decisions of this court, parties are entitled to an impartial jury. They have the right to a panel of 24 impartial jurors from which to strike. Mayor, etc., of Columbus v. Goetchius, 7 Ga. 139; Justices v. Griffin, etc., Plank Road Co., 15 Ga. 39; Howell v. Howell, 59 Ga. 145.

An impartial jury is the foundation stone of the fairness of trial by jury. Melson v. Dickson, 63 Ga. 682, 686, 36 Am. Rep. 128. Were the members of the Knights of the Ku Klux.Klan, a corporation without capital stock, competent and impartial jurors to try this case? They were not. "Jurors may be challenged, propter affectum, for suspicion of bias or partiality. This may be either a principal challenge, or to the favor. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favor, as that a juror is of kin to either party within the ninth degree; that he has been arbitrator on either side; that he has an interest in the cause; that there is an action depending be tween him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him—all these are principal causes of challenge, which, if true, cannot be overruled, for jurors must be omni exceptione majores." Mayor, etc., of Columbus v. Goetchius, supra.

It necessarily follows that, if the persons mentioned are subject to be challenged propter affectum for suspicion of bias or partiality, then clearly members of the defendant corporation were not competent and impartial jurors to try this case. To permit the members of the defendant corporation to try the case of their corporation would be in effect to permit the defendant to try its own case as a juror. To permit a juror to serve in his own case violates the fundamental principle that jury trials must be fair and free from suspicion of bias or prejudice, and is contrary to the principle announced in section 858 of the Penal Code of 1910 and the rulings of this court. "Trial by jury necessarily means trial by an impartial jury." Sullivan v. Padrosa, 122 Ga. 338, 339, 50 S. E. 142, 143. So the plaintiff had the undoubted right to challenge the competency of the members of this order to serve as jurors in this case, if the proper method of challenge was pursued.

This brings us to consider the question whether the method pursued by counsel for the plaintiff was the proper one to challenge the competency of the members of this order to serve as jurors in this case. A party may avail himself of challenge to jurors on account of their interest in the case, by a motion to put the jurors on their voir dire. In such case the court may propound to each juror the questions indicated in section 859 of the Penal Code of 1910, or he may propound them to the entire panel, adopting such plan as will assure a response to each question from each juror. Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696, 70 S. E. 234. "In misdemeanor and civil cases there is no statutory provision regulating the method to be adopted by the court in determining the competency of [jurors], but the settled rule is that either party has a right to request that the jurors be put upon their voir dire, in order that their competency may be determined. When such request is made, it is the duty of the court to propound, or cause to be propounded, such questions as will test the competency of the jurors to pass upon the issues in the case. The questions to be asked in each case are to be determined by the court, and what shall be the character and number of the questions is left largely to the discretion of the judge, who must keep in mind all the time the object to be attained; that is, the determination of whether the minds of the jurors are in such condition that they can pass fairly and intelligently upon the issuesto be submitted to them. * * * "While counsel may suggest questions to be asked, they have no right to insist that questions as framed by them shall be adopted by the court." Sullivan v. Padrosa, supra.

Counsel for the plaintiff in this case, before the striking of the jury began, requested the court to purge the jury of all members of the defendant corporation. This was "substantially a motion to challenge each and all of said jurors, and to prove their incompetency by themselves, and should have been granted by the presiding judge, under the unanimous ruling of this court in the case cited from 15 Ga." (Justices of Inferior Court of Pike County v. Griffin & W. P. Plank Road Co., 15 Ga. 39). Howell v. Howell, supra. It has been the custom and practice in this state for counsel for parties, before beginning to strike names appearing upon the panels of 24 jurors furnished to them for the purpose of selecting jurors, to request the court to purge the list of jurors disqualified from interest or relationship to serve as jurors, and to have the places of disqualified jurors supplied by competent and impartial jurors before commencing to strike juries in civil cases. The writer, during a general practice in the courts of this state, extending over a period of nearly half a century, had always seen this method pursued for the purpose of eliminating incompetent and partial jurors, and has never seen or heard questioned this method of challenge, or heard of a denial of a request to purge the jury list of jurors disqualified by relationship or interest. This has been the usual and customary method of challenge to determine whether names appearing upon the list are incompetent jurors, and to have the list filled up with competent jurors, if any on the list disqualify, so that parties may have a list of 24 competent and impartial jurors from which to strike a jury. This method of purging the jury was approved by the Court of Appeals in Bibb Manufacturing Co. v. Williams, 36 Ga. App. 605, 137 S. E. 636. The able judge who wrote the opinion in that case well said: "In this case the trial court was not able to say, as a matter of law, that no juror of the panel was disqualified for the reason indicated; and, such being the case, it was the duty of the trial judge to purge the panel. Whatever discretion might have been his in the method employed for such purpose, under the facts disclosed by the record it was no abuse of discretion for him to resort to the usual and most effective means of ascertaining the fact of disqualification."

It is entirely proper, and it is the duty of the court, to purge the jury, and endeavor to secure in the trial of cases, as far as possible, an absolutely unbiased panel. Calhoun County v. Watson, 152 Ala. 554, 44 So. 702; Woodmen of the World v. Wright, 7 Ala. App. 255, 60 So. 3006; Putnam v. Pacific Monthly Co., 68 Or. 36, 130 P. 987, 136 P. 835, 45 L. 11. A. (N S.) 338, L. R. A. 1915F, 782, Ann. Cas. 19150, 256; Wilson v. St. Joe Boom Co., 34 Idaho, 253, 200 P. 884; ...