Denver City Tramway Co. v. Carson

• Decision Date: 11 March 1912
• Citation: 123 P. 680,21 Colo.App. 604
• Parties: DENVER CITY TRAMWAY CO. v. CARSON.
• Court: Colorado Court of Appeals

123 P. 680

21 Colo.App. 604

DENVER CITY TRAMWAY CO. v. CARSON.

Court of Appeals of Colorado

March 11, 1912

Rehearing Denied May 13, 1912

Appeal from District Court, City and County of Denver; Samuel L Carpenter, Judge.

Action by Rilla Carson against the Denver City Tramway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles J. Hughes, Jr., Gerald Hughes, Thos Ward, Jr., and Howard S. Robertson, all of Denver, for appellant.

R.D Rees, of Denver, for appellee.

WALLING J.

The appellee was plaintiff in the district court, and brought this action against the appellant company, under the statute, to recover damages on account of the death of appellee's husband, who was fatally injured, by colliding with appellant's electric street car, in consequence of the alleged negligence of the latter's servants in the management and operation of the car. The trial in the district court resulted in a verdict for the plaintiff, appellee here, and from the judgment entered upon that verdict the defendant below appealed. The facts will be stated in the course of the opinion.

1. The first five assignments of errors relate to the ruling of the district court with respect to the challenge by defendant, for cause, of two of the persons summoned to serve on the jury. The bill of exceptions discloses that, after the examination by counsel for defendant of all the jurors called into the box, before he had announced that he "passed for cause," the following occurred: "Defendant's Counsel: I do not desire to pass for cause; I may have some challenges for cause. The Court: You have passed for cause. If you do not challenge for cause at the time you examine the juror, you have passed for cause. Defendant's Counsel: I desire at this time to exercise a challenge of certain jurors for cause. Having examined all of the jury, and not having stated to the court that I waived or passed for cause any of the jurors so examined, and not desiring to exercise a valid challenge for cause the court refuses to permit me to do it. Plaintiff's Counsel: So far as I am concerned, I am willing that he make his challenges and let your honor pass upon them. The Court: It has been the settled practice of the court for 15 years, or longer, that when a man is passed without any suggestion of counsel, that he is passed for cause. A statement at the close that the juror is passed for cause is simply a formality. He is passed for cause is when he proceeds to examine the next juror. Defendant's Counsel: We desire to save an exception to the ruling of the court. I desire to say that there are certain jurors who have served within a year, whom we desire to challenge under the statute. The Court: You knew that as well at the time of the examination as you do now."

At the afternoon session, the discussion was resumed as follows: "Defendant's Counsel: Regarding the matter we were discussing, I find this examination was not taken down by the stenographer, so there is no way of preserving the answers of the jurors. I would like to have the record show that Mr. Feierstein on his examination showed that he had served the last term of court in this division; also Mr. Hawkins served, I think, in the county court within a year. And we desire to challenge those two gentlemen for cause upon the ground that they have served within the year. That, in addition to what I stated this morning, will be all I desire. The Court: The challenge is overruled on the ground that counsel did not exercise it at the time the juror disclosed it upon his examination.

Defendant's Counsel: To which we desire to save an exception. I know ordinarily the rule is this, but sometimes I have taken the other method. I do not desire to take any short cuts on either court or counsel. We desire, for the purpose of preserving the record, to show that defendant has exercised all of its peremptory challenges. Plaintiff's Counsel: I would prefer to try this case upon its merits. If (defendant's counsel) feels that he wants to make those challenges, I would prefer to let him make them, and do away with all technicalities in the trial of the case. The Court: The court does not consider it a technicality. The court considers it an invasion upon a well-established practice which has been followed for years in this court, and the court does not desire to change it or to set any precedent."

The challenge sheet, or list of the 20 jurors, with the peremptory challenges of both parties noted thereon, was incorporated in the bill of exceptions, and indicates that the defendant exhausted its peremptory challenges; two of the persons so challenged by it being Feierstein and Hawkins. It is contended by the appellant that, in these circumstances, the court committed prejudicial error in refusing to allow defendant's challenge of the two jurors mentioned for cause. Much of the discussion in the briefs on this point is eliminated by the decision in the case of Denver City Tramway Co. v. Kennedy, 50 Colo. 418, 117 P. 167. The decision of that case turned upon the construction of the identical act, to wit, of April 10, 1905, which was in force at the time of the trial of the case at bar, and upon which the appellant relies to sustain the validity of its challenge for cause. Rev.Stats.1903, § 3690. Section 1 of the act of 1905 (Laws 1905, p. 280) provides: "That the fact that any person summoned in any way to serve as a juror in any district or county court shall have served as a juror in either of said courts, at any prior term, within one year next preceding, shall be a sufficient excuse for such person from service, and may also be ground for challenge for cause to such individual summoned." It was held in the Kennedy Case, supra: First, that the statute gave the right to challenge for cause any juryman, who had served as a juror at any prior term of the court held within a year next preceding the term at which such challenge was made; and, second, that where such challenge was properly made, but was overruled by the court, and the challenging party afterwards exhausted his peremptory challenges, using one of them on the disqualified juror, the action of the court in denying the challenge on the statutory ground was error to the substantial prejudice of the party who made the challenge.

If, then, the present record shows a case within the opinion of the Supreme Court cited, the plain duty of this court is to give effect to that opinion. If the bill of exceptions had set forth, in substance, the answers given by the challenged jurors in the particular mentioned, our task would be easier. Counsel who made the challenge, or attempted to do so, at first stated: "I desire to say that there are certain jurors who have served within a year, whom we desire to challenge under the statute." Subsequently, and at practically the same stage of the proceedings, counsel made the further statements above set forth.

Of course, the fact that the answers given by the jurymen had not been taken down by the stenographer was a wholly immaterial circumstance. If counsel desired to have the substance of the answers preserved, as a justification for the claimed right of challenge, the same might and should have been incorporated in the bill of exceptions. The declaration of counsel that he desired the record to show that certain statements of fact had been made by certain jurors did not, without more, incorporate such statements, as facts, in the record. The remark must be considered as a part of the challenge, intended to call the attention of the court to the evidence upon which it was based, and not as the evidence of the facts relied upon. Nor does the fact that it does not appear that plaintiff's counsel objected to the statements of fact included in the challenge as made alter the case. It does not appear that he was requested, either by the court or by opposite counsel, to admit or deny the latter's statements, or to give his own version of what the examination of the jurors disclosed. It appears from the bill that plaintiff's counsel expressed his willingness that defendant's counsel might make his challenges, and that the court should pass upon them; but that does not seem to imply anything more than a willingness that the court should determine the legal questions involved in the challenge upon the latter's recollection of the facts. Certainly, the plaintiff would have been estopped by her counsel's attitude from objecting to any adverse ruling of the court; but that cannot avail to support the exception of the appellant, in lieu of the evidence of the facts. It is the recognized rule that a judgment may not be reversed on account of an erroneous ruling or decision, unless it affirmatively appears from the record certified to the appellate court that some substantial right of the party complaining of the rule or decision was thereby prejudicially affected. Mills' Ann.Code, § 78.

Defendant's counsel first stated that there were certain jurors who had served within a year, and whom it was desired to challenge under the statute. Without reference to the reason then assigned by the court for refusing to consider the challenge the grounds asserted, if true, were insufficient as a challenge for cause, under the statute, as interpreted by the Supreme Court. Thereafter the challenge was amplified by naming the jurors, and by the further statement of counsel's version of the answers given by them on their examination as to their qualifications. With respect to the latter statement, it could easily be conceded that, if the examination of one of the jurors showed that he had served the last term of court in the same division, it would have sufficiently appeared that he had served at a preceding term of the court...