Ellenbecker v. Volin

• Decision Date: 23 June 1955
• Docket Number: No. 9383,9383
• Citation: 75 S.D. 604,71 N.W.2d 208
• Parties: Jo Ann ELLENBECKER, Plaintiff and Appellant, v. Dr. Verlynne V. VOLIN and Dr. Paul R. Billingsley, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 208

71 N.W.2d 208

75 S.D. 604

Jo Ann ELLENBECKER, Plaintiff and Appellant, v. Dr. Verlynne V. VOLIN and Dr. Paul R. Billingsley,

Defendants and Respondents.

No. 9383.

Supreme Court of South Dakota.

June 23, 1955.

Rehearing Denied Aug. 1, 1955.

G. J. Danforth, Jr., Sioux Falls, Edward A. Danforth, Minneapolis, Minn., for plaintiff and appellant.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and respondent Verlynne V. Volin.

Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and respondent Paul R. Billingsley.

SICKEL, Judge.

This is an action commenced by Jo Ann Ellenbecker, as plaintiff, against Verlynne V. Volin and Paul R. Billingsley, physicians and surgeons practicing as partners, defendants, to recover damages for injuries suffered by plaintiff which, it is claimed, resulted from malpractice and lack of skill in performing an operation. The jury returned a verdict for defendants and plaintiff appealed.

Plaintiff's complaint alleges that plaintiff consulted defendants as physicians and surgeons and upon their advice submitted to an operation for the removal of an ovarian cyst, in which operation both defendants participated; that as a result of defendants' negligence in performing the operation plaintiff suffered damages in the sum of $50,000. Defendants served separate answers in which they denied plaintiff's allegations of negligence and also denied that they were partners. The trial was commenced on September 15, 1952.

On motion of counsel for defendants, and over plaintiff's objection, defendants were allowed three peremptory challenges each. To this ruling plaintiff excepted. Plaintiff then requested that she be allowed six peremptory challenges, and this request was denied by the court. Defendants exercised five of the challenges allowed to them. After the selection of the jury was completed plaintiff's counsel made a motion to strike the jury panel and for a mistrial, on the grounds stated in the previous motions. This motion was also denied. All of the rulings of the circuit court upon the above motions have been assigned as error by appellant.

The assignments of error relating to peremptory challenges involve the construction of SDC 33.1310 which provides: 'Either party may challenge the jurors, but where there are several parties on either side they must join in a challenge before it can be made, except when the parties on the same side have conflicting interests they must each be allowed to examine and challenge separately, and must each be allowed the number of peremptory challenges provided by law. The challenges are to individual jurors, and are either peremptory or for cause. Each party is entitled to three peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff'.

According to the terms of this statute several parties, either as plaintiffs or defendants, must join in any challenge before it may be exercised. Challenges for cause are unlimited as to number, but peremptory challenges are limited to three for each party with one exception, namely: When two or more parties on the same side have 'conflicting interests'. When that situation exists those parties having conflicting interests are each allowed three challenges.

Defendants insisted throughout the trial that their interests were adverse and conflicting and upon this theory the court allowed each defendant three peremptory challenges and at the same time denied plaintiff a number of challenges equal to both. A similar issue under a similar statute was presented to the Supreme Court of Illinois in the case of Schultz v. Gilbert, 300 Ill.App. 417, 20 N.E.2d 884, 885. In that case eight plaintiffs joined their separate complaints in one action against the defendant. They charged negligence of defendant's servant in the operation of a truck and resulting injuries to the several plaintiffs. The statute of Illinois in regard to peremptory challenges provided: "In all civil actions each party shall be entitled to challenge five jurors without showing cause for such challenges. Where there is more than one plaintiff or more than one defendant, the judge shall allow additional challenges not to exceed three in number to each additional plaintiff or defendant without showing cause'.' S.H.A.Ill. ch. 110, Sec. 190. It appeared that after defendant had exhausted his five peremptory challenges and after plaintiff had exercised five peremptory challenges, the defendant attempted to exercise another. This challenge was denied by the court under the holding that additional challenges were not allowed to each side, but only for each additional plaintiff. On appeal the court said: 'On the other hand, we are of the opinion that that section insofar as it provides the extra peremptory challenges for one set of parties, because of numbers, also means that the other set, either singly or in numbers, are entitled to the same ratio of peremptory challenges. * * * This is done in the interest of justice and the wisdom of it is easily seen'. Further on the opinion of the court reasons that: 'To uphold the construction placed on this section of the Practice Act by the trial court would grant benefits and advantages to one class and impose burdens and penalties on another class in the same action. Such a construction would render the Act obnoxious to the Constitution. Where from particular language an interpretation can be given which would permit an equal enjoyment of benefits, or an equal imposition of burdens, such a meaning must be adopted'.

The Illinois statute quoted in Schultz v. Gilbert, like our statute SDC 33.1310, does not provide specifically that where additional peremptory challenges are allowed to one side because of number, the other side, whether single or in numbers, shall be allowed the same number. However, we regard the construction of the Illinois...