City of Birmingham v. Lane

• Decision Date: 18 October 1923
• Docket Number: 6 Div. 821.
• Citation: 210 Ala. 252,97 So. 728
• Parties: CITY OF BIRMINGHAM v. LANE.
• Court: Alabama Supreme Court

97 So. 728

210 Ala. 252

CITY OF BIRMINGHAM v. LANE.

6 Div. 821.

Supreme Court of Alabama

October 18, 1923

Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.

Action by Ethel E. Lane against the City of Birmingham. From an order or judgment granting plaintiff's motion for a new trial, defendant appeals. Affirmed.

W. J Wynn and W. M. Woodall, both of Birmingham, for appellant.

John W Altman, of Birmingham, for appellee.

THOMAS J.

The appeal is from the action of the trial court in granting a new trial on plaintiff's motion.

If any proper ground of the motion, under the evidence before the court, will support the judgment in granting a new trial, the same will be sustained, and this is the rule, although the trial court may have based its action on an improper ground. Choate v. A. G. S. R. R. Co., 170 Ala. 590, 54 So 507; Jones v. Jefferson County, 206 Ala. 13, 89 So 174.

It will not be necessary to indulge in a discussion of the rules governing the granting or refusal of such motions. Cobb v. Malone, 92 Ala. 630, 9 So. 738; N., C. & St. L. R. R. Co. v. Crosby, 194 Ala. 338, 70 So. 7.

It is sufficient to say that a trial court should excuse a juror when he is shown to be an unsuitable person to serve; in discharging the duty of passing on the qualification of jurors there should not be an arbitrary exercise of that power, but should be "apparently for a good purpose in the interest of justice." And where that duty is thus exercised by a trial court, such action will not be reviewed. State v. Marshall, 8 Ala. 302; Fariss v. State, 85 Ala. 1, 4 So. 679; Griffin v. State, 90 Ala. 596, 8 So. 670; Williamson v. Mayer Bros., 117 Ala. 253, 259, 23 So. 3; Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687; K. C., etc., Co. v. Ferguson, Adm'r, 143 Ala. 512, 39 So. 348; Barden v. State, 145 Ala. 1, 9, 40 So. 948.

It is further established that, if the injured party had notice of the disqualification of the juror, and did not invoke the action of the court to eliminate such juror, such party may not thereafter effectively use such disqualification for the purpose of procuring a new trial. Brown v. State, 52 Ala. 345, 348; James v. State, 53 Ala. 380; Oliver v. Herron, 106 Ala. 639, 17 So. 387. It follows that where there was such disqualification, which was unknown to the injured party, the same may be made the basis of a motion for a new trial. In Leith v. State, 206 Ala. 439, 441, 90 So. 687, it was declared that a juror's consideration of a prejudicial extrinsic fact during deliberation was properly presented for the consideration of the trial court by a motion for a new trial. The court said:

"The jury system, as a time-honored institution of the common law, and under the Constitutions and the statutes, is dependent upon a fair trial by jurors, without bias or prejudice for or against either party litigant or the state or the defendant. Our statutes have been enacted to safeguard this right, which can only be secured by unbiased jurors. Sovereign Camp v. Ward, 196 Ala. 327, 71 So. 404; Calhoun County v. Watson, 152 Ala. 554, 44 So. 702; L. & N. R. R. Co. v. Young, 168 Ala. 551, 53 So. 213; Stennett v. City of Bessemer, 154 Ala. 637, 45 So. 890. And it has been often held by this court that the right of neither party to a jury free from bias or interest is lost, or subjected to chance or peril, because a struck jury is demanded."

In the case of Woodmen of the World v. Alford, 206 Ala. 18, 89 So. 528, the disqualification of the judge by reason of membership in defendant beneficial society was considered, and it was declared that, in an action on a fraternal benefit certificate, a member of such order having such a certificate had an interest which disqualified him upon the objection of the defendant. Sovereign Camp W. O. W. v. Ward, 196 Ala. 327, 71 So. 404.

In Burdine v. Grand Lodge of Alabama, 37 Ala. 478, 481, Judge Stone said:

"It is certainly a good and wholesome rule, which should be strictly regarded, that any pecuniary interest, even the smallest, in the event of the suit, will disqualify a person from serving on the jury charged with its trial. This rule is necessary as a protection to the public interest, and as a guaranty of that purity and integrity in the administration of the law, which alone can inspire respect for, and confidence in, our judicial tribunals."

In the case of Brazleton v. State, 66 Ala. 96, 98, Judge Brickell declared:

"Impartiality, freedom from bias or prejudice, capacity without fear, favor, or affection, a true deliverance to make between the accused and the state, the law demands as the qualification of a juror; and it is as essential as the impartiality of a judge. Relationship within certain degrees, whether of consanguinity or affinity, is an absolute disqualification. It is not only such relationship, but temporary relations, formed in the course of business, or in the intercourse of life, which

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