Burke v. McKenzie

• Decision Date: 25 June 1957
• Docket Number: No. 37474,37474
• Citation: Burke v. McKenzie, 313 P.2d 1090 (Okla. 1957)
• Parties: E. J. BURKE, Plaintiff in Error, v. Billy McKENZIE and May P. McKenzie, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 1090

313 P.2d 1090

1957 OK 155

E. J. BURKE, Plaintiff in Error, v. Billy McKENZIE and May P. McKenzie, Defendants in Error.

No. 37474.

Supreme Court of Oklahoma.

June 25, 1957.

Syllabus by the Court.

1. Jurors who returned a verdict against defendant in an action involving an essential question of fact were disqualified to sit in a succeeding case against the same defendant where the same question of fact was involved.

2. The discretion vested in trial courts is a judicial discretion, to be exercised under fixed legal principles, and with due regard to what is right and equitable under the circumstances.

3. Where, under facts such as disclosed herein, it appears some of the jurors would require evidence to be presented to change preconceived opinions, the trial court's action in overruling defendant's objections and qualifying such jurors as competent to serve was an abuse of discretion necessitating reversal.

Appeal from the District Court of Sequoyah County; E. A. Summers, Judge.

Suit for damages alleged to have resulted from defendant's negligence in conducting certain aerial spraying operations. Judgment for plaintiff and defendant appeals. Reversed and remanded for new trial.

Roy Frye, Sr., Roy Frye, Jr., Sallisaw, for plaintiff in error.

J. Fred Green, Fred D. Green, W. S. Agent, Sallisaw, for defendants in error.

CORN, Vice Chief Justice.

This is an appeal from a judgment rendered upon a jury verdict, in an action brought by plaintiff to recover damages alleged to have resulted from the negligence of defendant and his employees in the conduct of certain aerial spraying operations. The present case was the second of a series of five cases successively tried against this defendant at the same term of court. The issues presented by the pleadings are identical with those in Burke v. Thomas, Okl., 313 P.2d 1082. The factual matters disclosed by the testimony, adduced principally from the same witnesses, are the same except for variation in items of damage and amounts claimed therefor, so that the evidence in the present case requires no further elaboration. However, an additional and decisive question is presented by this appeal, which necessitates recitation of matters which occurred during the trial.

When this case was ready for trial, November 29, 1955, the defendant announced not ready, objected to going to trial and asked a continuance. The motion for continuance was for the reason the jury panel consisted of only 23 jurors, twelve of whom had participated in the previous case (Thomas v. Burke) involving identical questions of fact, wherein such jurors had returned a verdict finding the defendant liable; that such jurors were not impartial but were prejudiced against this defendant. Defendant's objection and motion were overruled and the trial proceeded with voir dire examination of the prospective jurors.

Voir dire examination disclosed that of the twelve jurors called to the jury box seven were jurors in the trial of the previous case. One of them (Webster) disclaimed any knowledge of the purported facts of the case, but admitted he felt had it not been for defendant 'the spraying wouldn't have gone on,' and it would require presentation of evidence to change his mind as to this fact. Defendant's request to excuse this juror was denied. The trial court then inquired whether the juror had an opinion whether defendant sprayed plaintiff's property and, upon receiving a negative answer, asked if it was true that since he had no idea whether defendant sprayed plaintiff's property then the juror could not know or have an opinion whether plaintiff suffered damage. Upon again rereceiving a negative answer the court ruled the juror not to be disqualified.

Another prospective juror (O'Neal) had heard the testimony in the previous case, and upon being asked whether such evidence would influence his judgment in the case being tried, stated that if the evidence showed plaintiff was damaged by the spraying he would think defendant was responsible. The request to excuse such juror on the ground he was no longer impartial was refused.

Others of the empaneled jurors, who sat in the trial of the previous case, admitted knowledge of the facts concerning defendant's activities in the spraying operations, but stated such knowledge would not influence their judgment in the trial of this case. At the conclusion of the voir dire examination defendant moved to excuse all jurors who sat in the case of Thomas v. Burke, supra, because the facts were the same and such jurors had returned a verdict determining defendant's liability. The motion was denied.

Thereupon plaintiff's counsel inquired of the six jurors then empaneled, who participated in the first case whether that testimony would influence their decision in the case to be tried. These jurors indicated that they would not be influenced, and that plaintiff would have to prove defendant's responsibility for plaintiff's damage before they would hold defendant liable.

Defendant then examined another juror (Treat) who sat in the first case, and who stated that he had knowledge of the facts relating to the time and place of the spraying and resulting damages. This juror admitted that if the evidence disclosed plaintiff had suffered some damage he would consider defendant responsible therefor because of what he heard in the other case, and stated it would take evidence on defendant's part to show he was not responsible. After defendant's motion to excuse this juror for cause the following occurred.

'The Court: In this case would you just assume that because you rendered a verdict in the first case that Burke is liable in this case, or would you require the plaintiff McKenzie to prove that Burke actually sprayed his land and did him the damage?

'Juror: That's right. That's the way I see it.

'The Court: All right then; overruled.

'Mr. Frye: Exception.

'The Court: I'll say to the jury the mere fact that Burke might have sprayed the land of somebody else and might be liable in damages doesn't mean he is liable to everybody who might sue him, but the plaintiff must prove that Burke actually sprayed his land and what his damages are.'

Following these proceedings the jury was sworn and the trial proceeded. After hearing the evidence, and under oral instructions from the trial court, the jury returned a verdict in plaintiff's favor ($1,500), upon which the judgment appealed from was rendered.

The various assignments of error are presented under five propositions. However, it is unnecessary to consider other than the first of these since the case must be reversed and remanded for new trial. The question raised on appeal is asserted by the following proposition:

'That the court erred in overruling the defendant's motion for a continuance and in forcing the defendant to try the case before the same panel of jurors who had, during the same term of court, heard all or practically all of the evidence of the defendant and plaintiffs and who had rendered a verdict against this defendant in similar cases brought by other plaintiffs. The court erred in overruling the defendant's challenges to the individual jurors who tried similar cases against this defendant.'

Defendant points out that the right of trial by jury is a fundamental right recognized and guaranteed under our Constitution. Const. art. II, Sec. 19. And, further, the need for matters to be tried only before impartial jurors is recognized in our statute, 12 O.S.1951 § 572, which provides:

'Causes for challenging jurors.--If there shall be impaneled, for the trial of any cause, any petit juror, who shall have been convicted of any crime which by law renders him disqualified to serve on a jury; or who has been arbitrator on either side, relating to the same controversy; or who has an interest in the cause; or who has an action pending between him and either party; or who has formerly been a juror in the same cause; or who is the employer, employee, counselor, agent, steward or attorney of either party; or who is subpoenaed as a witness; or who is of kin to either party; or any person who shall have served once already on a jury, as a talesman on the trial of any cause, in the same court during the term, he may be challenged for such causes; in either of which cases the same shall be considered as a principal challenge, and the validity thereof be tried by the court; and any petit juror who shall be returned upon the trial of any of the causes hereinbefore specified, against whom no principal cause of challenge can be alleged, may, nevertheless, be challenged on suspicion of prejudice against, or partiality for either party, or for want of competent knowledge of the English language, or any other cause that may render him, at the time an unsuitable juror; but a resident and taxpayer of the State or any municipality therein shall not be thereby disqualified in actions in which such municipality is a party. The validity of all challenges shall be determined by the court. R.L.1910, § 4997.'

Defendant's position is that the law generally recognizes that jurors must be impartial, and bias or prejudice in a case disqualifies one as a juror thereon and provides cause for a challenge. See 31 Am.Jur., Jury, Sec. 133. Defendant recognizes the general rule, that whether a juror's state of mind is such as will prevent his acting with complete impartiality is a matter largely within the discretion of the trial court. In 31 Am.Jur., Jury, Sec. 162, the rule is stated as follows:

'Jurors who have acted in a case involving an essential question of fact have been held incompetent to sit in a subsequent case where such question of fact is one of the material issues; this is on the ground that the juror is biased in that he has formed or expressed an opinion, and in some cases the rule has been adhered to even though the juror declared on his voir dire that he was unbiased. This rule has been applied where one of the...