Dow v. United States Steel Corp.

• Decision Date: 14 March 1952
• Docket Number: No. 10591.,10591.
• Parties: DOW v. UNITED STATES STEEL CORP.
• Court: U.S. Court of Appeals — Third Circuit

195 F.2d 478 (1952)

DOW v. UNITED STATES STEEL CORP.

No. 10591.

United States Court of Appeals Third Circuit.

Argued February 5, 1952.

Decided March 14, 1952.

Hymen Schlesinger, Pittsburgh, Pa., for appellant.

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

Before GOODRICH and HASTIE, Circuit Judges, and MODARELLI, District Judge.

GOODRICH, Circuit Judge.

This is a suit under the Jones Act, 46 U.S.C.A. § 688, for damages claimed to have been suffered by the death of Paul Dow because of the defendant's negligent failure to provide Dow with reasonable medical care when he was ill on the defendant's steamer, "James E. Lose." The case has been before this court before, Dow v. Carnegie-Illinois Steel Corp., 3 Cir., 1948, 165 F.2d 777, and the recital of the facts previously given need not be repeated. The case was tried to a jury and a verdict returned for the defendant.

So far as the facts are concerned the case is one where the jury could well have found the way it did. Paul Dow became ill while working on the defendant's vessel. There is no doubt of that. But it is quite another thing to say that the employer unreasonably failed to provide him with medical attention, especially in view of the sick man's obvious reluctance to be relieved of duty and sent to a hospital. We are left, therefore, with the points raised in the appeal which have to do with the conduct of the trial.

Error is assigned because the jury which tried the case was an improperly selected jury. The challenge is to the "array." Plaintiff, through counsel, says that the jury panel was improperly chosen. The motion of the plaintiff was to strike the entire jury panel. The reasons therefor may be quoted in the words of the plaintiff's attorney. He says:

"1. The method and procedure of selecting trial jurors in this Court does not comply with the law.

"2. The method and procedure of selecting and qualifying trial jurors is not in conformity with the decisions of the Supreme Court.

"3. The panel of jurors and their method of selection indicates that they are not representative of the community nor do they constitute a cross-section thereof.

"4. The jurors have been selected in a discriminatory, unfair and partial manner and excludes either deliberately or by necessary implication important elements of the community such as naturalized foreign born citizens, Negroes, veterans, labor people and many others."

In addition there was a supplemental motion to strike: "for the additional reason that some of the members of the jury panel have been under surveillance and investigation by unauthorized persons and jury investigation lists have been used by counsel."

The original motion and the supplement thereto were both dismissed without hearing in the District Court. The Chief Judge of the Court to whom the motion was originally made filed an opinion, D.C.1951, 100 F.Supp. 494, describing the selection of jurors in the Western District of Pennsylvania. But this opinion was not, obviously, based on findings of fact in any hearing at which the plaintiff had presented any testimony.

The supplementary motion based upon the alleged surveillance of jurors was likewise dismissed without hearing. There was, however, prior to trial, a questioning of the prospective jurors. The questions were asked by the clerk upon interrogatories propounded by plaintiff's counsel, and over defendant's objection. One of the interrogatories asked, "Has any person interviewed you, or any member of your family or neighbor or acquaintance in connection with your service on the Federal Jury?"

In response to this question some of the jurors raised hands and gave answers. The following is typical: "I was told by a neighbor who lived in the apartment upstairs that she had been approached by someone who claimed to be a Jury investigator. She was asked several questions. I don't know what answers were given."

It appeared to the trial judge that none of the jurors who had been asked any question had served on this panel and he, therefore, dismissed the allegations as irrelevant. We cannot agree with that. After all, the questions about investigation were asked in the presence of all the prospective jurors for this case. If there is anything to the surveillance or intimidation point, it could well be that all the jurors would have felt whatever pressure there was, regardless of whether they were actually asked questions by the alleged investigators or not. If some of the jurors were investigated, the remainder might well think, and reasonably so, that they had been investigated too.

We think that the issues raised by the plaintiff's counsel are such that he should be entitled to present evidence on the point. It is alleged that this motion is being habitually made in cases in which this counsel is involved in the Western District. If a jury list is improperly drawn, or jurors are subjected to improper investigation, that fact should be brought out and the improper practices stopped. On the other hand, if charges are being recklessly or frivolously made, the court has it within its own inherent power to provide such discipline for members of its bar that may be just under the circumstances.

The federal statutes having to do with juries do not give many mandatory directions for compiling lists of prospective jurors. They are explicit about the illegality of discriminatory exclusion on account of race or color. They make certain disqualifications.¹ The statute talks about the function of jury commissioner and court clerk as though a great deal of discretion was vested in those officials.² That the discretion is not unlimited is likely. For example, there is a statute which puts in the judicial council for each circuit the responsibility for the general supervision of the administration of the federal judicial system of the circuit.³

If a responsible member of the bar charges that the method of selecting jurors is such that his client may not have a fair trial, he should have a chance to prove it. He cannot prove it if a motion based upon the assertion of such a situation is overruled without hearing.

The same proposition holds true for the supplementary claim of jury surveillance. The quoted statement of one of the panel, set out above, shows how little information we have with regard to what investigation was made, if any. Counsel alleges that reports of investigations of jurors are sold in the corridor of the Court House in Pittsburgh. We do not know that as a fact except through the assertion made in argument. Nor do we know what is on the lists, if any. We do not know what questions have been asked jurors, prospective jurors or their acquaintances and neighbors or by whom.

This court quite realizes the importance of protecting jurors from intimidation. The Sinclair case⁴ was cited to us. It is not in point here on the facts. But the general proposition that a jury must be free to decide cases submitted to it on the law and the facts without outside pressure is one to which we heartily subscribe.

We cannot answer the question which counsel raises on the merits until we know all the facts surrounding the alleged investigation. If a list of jurors was passed around which contained only their names, addresses and occupations, it is a little hard to see how anybody could complain about the distribution of what is public information anyhow. If it contained more than that, what was it? Here again we cannot determine whether the plaintiff has ground for legitimate complaint until we know what happened. On this...