Dow v. Carnegie-Illinois Steel Corporation, 10946.

• Decision Date: 13 June 1955
• Docket Number: No. 10946.,10946.
• Parties: Harriet DOW, Administratrix of the Estate of Paul Dow, Deceased, Appellant, v. CARNEGIE-ILLINOIS STEEL CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

224 F.2d 414 (1955)

Harriet DOW, Administratrix of the Estate of Paul Dow, Deceased, Appellant, v. CARNEGIE-ILLINOIS STEEL CORPORATION.

No. 10946.

United States Court of Appeals Third Circuit.

Argued March 15, 1954.

Decided June 13, 1955.

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Hymen Schlesinger, Pittsburgh, Pa., for appellant.

Ira R. Hill, Pittsburgh, Pa. (Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for appellee.

Charles C. Hewitt, Pittsburgh, Pa. (Earl F. Reed, William H. Eckert, Vincent M. Casey, Nicholas Unkovic, Harold E. McCamey, Robert B. Ivory, Bernard Goodman, Watson B. Adair, Edward C. Boyle, Fulton B. Flick, Pittsburgh, Pa., on the brief), for Rules Committee of United States District Court for Western Dist. of Pennsylvania, intervenor.

D. Malcolm Anderson, Jr., Asst. U. S. Atty., Pittsburgh, Pa., Lawrence K. Bailey, Washington, D. C. (John W. McIlvaine, U. S. Atty., W. D. Pennsylvania, Pittsburgh, Pa., Kevin T. Maroney, Atty., Department of Justice, Washington, D. C., on the brief), for the United States, amicus curiae.

Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.

BIGGS, Chief Judge.

This is an appeal from a judgment for the defendant in a personal injury action brought under the Jones Act, 46 U.S.C.A. § 688, and tried by a jury.

I.

The first trial of this case in 1946 resulted in a verdict for the defendant, D.C. W.D.Pa.1947, 70 F.Supp. 1016, which was reversed by this court because of error in the admission of certain evidence. 3 Cir., 1948, 165 F.2d 777. Before the constitution of the jury for the new trial of this cause in 1950, the plaintiff challenged the array of jurors by a motion to strike alleging that the entire panel had been improperly selected, but this motion was denied by the Chief Judge of the District Court without hearing evidence. W.D.Pa.1951, 100 F.Supp. 494. Just before commencement of the trial, a supplemental motion to strike the panel because it had allegedly been subjected to surveillance and investigation by unauthorized persons was filed, but this motion also was summarily denied by the District Judge assigned to hear the case. At the trial that followed, a verdict was again rendered for the defendant. The plaintiff then moved for a new trial on the ground, among others, that the court erred in failing to grant a hearing on the plaintiff's original and supplemental motions to strike the jury panel. Relying on the ruling of the Chief Judge on the original motion and on his own previous disposition of the supplemental motion, the District Judge denied the plaintiff a new trial. D.C. W.D.Pa.1951, 100 F.Supp. 493.

On appeal, after deciding that the other points raised did not constitute reversible error, this court directed that "the judgment of the District Court * * * be vacated in order that the case may go back for hearing on the plaintiff's objections to the selection of jurors and the alleged intimidation of them" inasmuch as a factual basis for the disposition of these objections was necessary. To facilitate the hearing on remand, this court then stated that the plaintiff's case could "be properly developed if * * * she shows present conditions of the type * * * she claims existed at the time of these motions and then shows continuity between the methods used now and the practices of that time." Dow v. United States Steel Corp., 3 Cir., 1952, 195 F.2d 478, 481, 482.

At the hearing which ensued before the court below on the method of selection of the jury panel, counsel for both parties with the approval of the court agreed that the "court * * * take the record in the Nelson case as the basis for its findings and * * * adopt the evidence, the exhibits, the rulings of the court, and the decision of Judge Stewart as its own." The Nelson case was a criminal prosecution in the court below for violation of the Smith Act, 18 U.S.C. § 2385, in which there had been a hearing and evidence taken on a similar motion to strike the jury panel, and that motion had been denied by Judge Stewart in an opinion which was filed shortly before the agreement in this case was made. United States v. Mesarosh, D.C.W.D.Pa. 1952, 13 F.R.D. 180. On the issue concerning surveillance of the jury, evidence was taken at the hearing in this case. Thereafter, the court below ruled on the first issue that the method of jury selection was proper, adhering to the conclusion of Judge Stewart without making separate findings, and on the second issue, held that there had been no intimidation of the jurors. D.C.W.D.Pa. 1952, 108 F.Supp. 88. This appeal followed.

II.

We shall first discuss the questions, raised by the plaintiff's motion, concerning the methods of selection of jurors in the Western District of Pennsylvania. The evidence adduced to establish these methods pertains primarily to a period after the trial at which the plaintiff challenged the array assembled to try her case. However, this court in remanding for a hearing on the challenge consented to the use of evidence of selection methods at times after the plaintiff's trial if continuity of practices could be shown. Although the plaintiff has not established such continuity, she has chosen to rest her case on the later practices and the defendant, who also consented, is in no way prejudiced since it is evident that any change that did occur in the selection methods during the interim was a change for the better so far as selection procedures go. Consequently, we will consider the case primarily on the basis of the evidence of the later practices now before us.

In the selection of jurors, the clerk of court, or his deputy, and a commissioner, appointed by the court as a "well known member of the principal political party" opposing the party of the clerk or his deputy, are the responsible officials. 28 U.S.C. § 1864. Jurors, to be qualified for selection, must be twenty-one years old, citizens and residents of the judicial district, and must have the usual physical, mental and linguistic capacities, must not have been convicted of a felony, and must be competent "to serve as a grand or petit juror by the law of the State in which the district court is held." 28 U.S.C. § 1861. The qualifications for jury service under the laws of Pennsylvania, which are pertinent here, are substantially the same as those under the federal law. See 17 Purdon's Pa.Stat. Anno. § 1279 and § 1333. From a list of qualified individuals compiled by the clerk or his deputy and the jury commissioner, these officials draw by chance as prescribed by statute the names of the individuals to constitute particular jury panels. See 28 U.S.C. § 1864.

In this case, it is the method of selection of names making up the master list from which panels are drawn that is important. Evidence on this issue was primarily elicited from five witnesses who had served either as the jury commissioner, the clerk of court, or the clerk's deputy. Edward Snodgrass, Jr. testified that he had served as jury commissioner for thirteen years prior to July 31, 1950, when he left office. During that period, he maintained his lists by soliciting from various sources the names of prospective jurors. Each such prospective juror was sent a form questionnaire, and if that was returned and revealed that the individual was qualified, his name was added to the master list. Initially, the sources for the solicitation of names were largely the personal acquaintances of Snodgrass in the District. He requested names from people he had known in business. Moreover, names were obtained from various organizations where he had contacts, such as the Chamber of Commerce, banks, a post of the American Legion, and an association of the Veterans of Railroads. Snodgrass was a member of the Free and Accepted Masonic Order and was a trustee of the diocese of the Episcopalian Church, and names were obtained from both of these sources. In addition, he procured names from postmasters throughout the District. The number of names that were obtained from all of these sources remained undetermined at the hearing except that it was shown that the names of twenty-six individuals came from the banking contacts. However, the greatest source of names, according to Snodgrass, was the former jurors from whom new names were obtained in the following manner: "If I needed names in Lawrence County, for instance, I would particularly locate a person or persons that seemed very intelligent, that understood what they were doing, and then I would ask that person to give me names * *." The next greatest source was volunteers for jury duty who were of "all types." When he was asked several times as to whether he solicited the names of particular types of individuals, Snodgrass replied: "I don't know that they were. I wasn't looking for any particular kind or type, * * * — just that they were eligible citizens and in the places where we needed names out of the eighteen counties in Western Pennsylvania"; "I was not looking for any one class"; "I didn't ask any organizations as organizations. That wasn't my purpose. I only wanted enough names to make the necessary panel, and when I had them that is all there was to it." Snodgrass testified that he did not solicit names from labor unions and that the only source he knew that submitted the names of union men was two former jurors employed at a local steel plant. In regard to obtaining the names of Negroes, Snodgrass had contacts with members of that race through business, participation on a board of religious education, and through working on a local traffic committee. He stated that he had obtained names of twenty or thirty Negroes from two elevator operators in the federal building and sixty or sixty-five from a Negro to whom he had been referred. As to whether the names of other Negroes were submitted, Snodgrass testified that "there were probably colored persons' names given to me that I didn't...