Butler v. Greensboro Fire Ins. Co.

• Decision Date: 24 October 1928
• Docket Number: 291.
• Citation: 145 S.E. 3,196 N.C. 203
• Parties: BUTLER v. GREENSBORO FIRE INS. CO.
• Court: North Carolina Supreme Court

145 S.E. 3

196 N.C. 203

BUTLER v. GREENSBORO FIRE INS. CO.

No. 291.

Supreme Court of North Carolina

October 24, 1928

Appeal from Superior Court, Columbus County; Sinclair, Judge.

Action by J. F. Butler against the Greensboro Fire Insurance Company. Judgment for plaintiff, and defendant appeals. New trial.

Defendant was entitled to new trial after second verdict for plaintiff by jurors who returned first verdict.

On November 16, 1925, the defendant issued a policy of fire insurance on certain property of the plaintiff for the sum of $1,800. The policy was delivered to the plaintiff, the premium was paid in advance for two years, and while the policy was in force and effect a building belonging to the plaintiff was destroyed by fire. The total loss is alleged to have been $4,000, and it is admitted that the policy was issued in the sum of $1,800. The direct controversy between the parties was whether the policy of insurance covered the particular property that had been burned. The case was tried in the absence of defendant's counsel, and the jury returned a verdict that the house which had been burned was covered by the policy and that the plaintiff was entitled to recover $1,800 with interest from January 23, 1927. Judgment was given upon the verdict, and thereafter defendant's counsel moved to set aside the verdict for surprise and excusable neglect. The motion was allowed, and the case was thereupon again called for trial, and over defendant's objection it was tried by the jury which had previously tried the case, in the absence of the defendant's counsel. The defendant challenged the array and also the individual jurors, on the ground that they had previously determined the issue between the plaintiff and the defendant. The peremptory challenges were exhausted, and exception was entered to the ruling that the other jurors were competent.

The greater number of jurors said upon examination that they would not enter upon the trial with a clear, unbiased mind as they had done when the case was first called for trial and that it would take a great deal of evidence to remove the impression already made on their minds. They answered further that, notwithstanding the impression previously made, they could hear the evidence and render an impartial verdict without being influenced by what they had heard on the previous trial, and that they could enter upon the consideration of the case with an open mind and make up their verdict upon the evidence uninfluenced by what they had heard. Thereupon the court held the several jurors to be competent. The defendant excepted. The issues were again answered for the plaintiff. Judgment was given upon the verdict, and the defendant excepted and appealed upon error assigned.

Herbert McClammy and I. C. Wright, both of Wilmington, for appellant.

Powell & Lewis and E. M. Toon, all of Whiteville, for appellee.

ADAMS J.

The two general divisions of challenges are to the array and to the polls. At common law the office of selecting a jury was committed to the sheriff, and his partiality, or "unindifferently," was the usual ground on which the array was challenged. Under our practice a challenge to the array is generally allowed when partiality or misconduct of the summoning officer is brought to the attention of the court, or where in making out the jury list, a mandatory statute is disregarded, or where some fatal irregularity is shown. 1 Thompson on Trials, c. 3, § 31; State v Murph, 60 N.C. 129; State v. Haywood, 73 N.C. 437; State v. Martin, 82 N.C. 672; State v. Speaks, 94 N.C. 865; State v. Hensley, 94 N.C. 1021; Moore v. Guano Co., 130 N.C. 229, 41 S.E. 293. There was no error in overruling the challenge to the array; but the other exceptions present a more serious question.

Challenges to the polls are peremptory and for cause. Those for cause were subdivided at common law into four classes: Propter honoris respectum, out of respect of rank or honor; propter defectum, on account of some defect; propter delictum, on account of crime; and propter affectum, on account of affection or prejudice. 4 Bl. 352; State v. Levy, 187 N.C. 581, 122 S.E. 387. Not with the first three classes, but with the fourth only, are we now concerned.

Challenges propter affectum are either principal challenges, that is challenges for principal cause, or challenges to the favor. In the event of a challenge to the favor, the finding as a fact by the trial judge that a juror is or is not indifferent is not reviewable on appeal. The theory is this: An opinion finally or fully made up and expressed is a cause of principal challenge...