Darraugh v. Denny

• Decision Date: 28 November 1922
• Parties: DARRAUGH v. DENNY.
• Court: Kentucky Court of Appeals

245 S.W. 152

196 Ky. 614

DARRAUGH v. DENNY.

Court of Appeals of Kentucky.

November 28, 1922

Appeal from Circuit Court, Grant County.

Action by J. C. Darraugh against Franklin Clarke Denny, executor of the estate of Nancy A. Darraugh, deceased. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

W. S Cason, of Cynthiana, and J. J. Blackburn, of Williamstown for appellant.

C. C Adams and O. S. Hogan, both of Williamstown, and Dickerson & Dickerson, of Cincinnati, Ohio, for appellee.

CLAY J.

J. C. Darraugh sued Franklin Clarke Denny, executor of the estate of his deceased wife, Nancy A. Darraugh, to recover on a note for $2,500, subject to a credit of $525. The defendant pleaded non est factum, want of consideration, and material alteration of the note. The first trial resulted in a verdict for plaintiff, which was set aside and a new trial granted. The second trial resulted in a hung jury, and a third trial in a verdict and judgment for defendant. Plaintiff appeals.

One of the grounds on which a new trial was asked was the relationship of certain jurors to the defendant and the defendant's wife. It appears from the affidavits that the juror T. T. Thompson is a second cousin of the defendant; that the juror W. P. Colston is a third cousin of the defendant, and that the jurors L. F. Sayers and B. P. Adams are defendant's third cousins by marriage. It further appears that the defendant and each of the jurors knew of the relationship, and that the jurors were asked as to the relationship, and answered that they were not related. The affidavits also show that plaintiff did not discover the relationship of the jurors to the defendant and his wife until after the trial. No counter affidavits were filed, but the court held the affidavits and grounds insufficient. In support of this ruling, it is argued that the affidavits and grounds are vague and indefinite, that they do not state facts showing the relationship, and that, although they do state that the jurors knew of the relationship, and when asked in reference thereto, answered that they were not related, they do not show that the answers were made for any ulterior motive.

It is further insisted that the affidavits do not show that plaintiff exercised reasonable diligence to discover the relationship. This is not a case where the relationship is stated in such indefinite terms as to require the services of a genealogist to determine what it is. The degree of relationship is shown. While greater particularity may be required in cases where property rights depend upon the precise degree of relationship, we are of the opinion that, where the only question is the disqualification of a juror, it is a sufficient allegation of fact to say that he is the second or third cousin of the defendant or of the defendant's wife, without alleging how or through whom the relationship is reached.

There was no want of diligence on the part of plaintiff in not discovering the relationship sooner. He did all that the law required when he asked the jurors whether they were related by blood or marriage to either party to the action. He had the right to rely on their answers, and was under no duty to institute an independent investigation for the purpose of determining whether their answers were true or false. That being true, it was not necessary to allege in the affidavit that any such investigation was made.

Nor was it necessary to allege that the jurors were influenced by the relationship or were actuated by any ulterior motive in rendering the verdict. Triers of fact should be fair and...