Flanary's Adm'x v. Griffin

• Decision Date: 04 May 1951
• Citation: 239 S.W.2d 248
• Parties: FLANARY'S ADM'X v. GRIFFIN et al.
• Court: Supreme Court of Kentucky

Page 248

239 S.W.2d 248

FLANARY'S ADM'X v.GRIFFIN et al.

Court of Appeals of Kentucky.

May 4, 1951.

Clarence A. Cornelius, M. F. Hall, Harlan, for appellant.

J. B. Carter, Astor Hogg, Harlan, for appellees.

CAMMACK, Chief Justice.

In August, 1947, in Cumberland, Shelby M. Flanary was fatally stabbed.In June, 1948, a petition was filed in the Harlan Circuit Court, styled 'Doris C. Flanary, Administratrix of Shelby M. Flanary, Deceased, v. John Griffin and Bill Griffin.'The petition charged that the Griffins willfully and wrongfully stabbed and killed Shelby Flanary, and damages were sought for that alleged wrongful act.The trial resulted in a verdict for $10,000 and judgment in that amount was entered the next day.Appellees were granted a new trial, as will be hereinafter discussed.Upon the second trial the jury returned a verdict for the defendant, John Griffin, and a verdict for the plaintiff against Bill Griffin in the sum of $5,000.

This appeal is prosecuted by Doris Flanary from the judgment rendered upon the verdict in the second trial.The alleged errors are those of law, but the events leading up to and through the stabbing are important insofar as complaint is made of the instructions.

On the day Flanary was killed, he and a son of John Griffin had been driving around in a drunken condition.John Griffin encountered the two and unsuccessfully undertook to get them off the highway.There is evidence he called the police at Cumberland, but nothing came of that.John Griffin then started home and met his son Bill, who is a partydefendant.These two returned to Cumberland and John Griffin went into the telephone exchange to place a call for the sheriff at Whitesburg.There is an intimation Flanary learned through Bob White that John Griffin was calling the sheriff.At any rate Flanary came to the door leading into the telephone exchange and asked for John Griffin.There were no eyewitnesses at that time, but soon thereafter blows were heard in the alley into which John Griffin had gone to meet Flanary.Most of the witnesses testified that they noticed nothing unusual about the actions of the two men until blows exchanged between them attracted their attention.It is well substantiated that Bill Griffin, who had approached the telephone exchange to see what was delaying his father, ran across the street when he saw the scuffle and plunged a knife into Flanary's heart.All the appellant's witnesses testified that John Griffin held Flanary while Bill Griffin did the stabbing.John Griffin denied that he held Flanary.Bill Griffin admitted stabbing Flanary, but pleaded defense of himself and his father.

The appellant argues first that the court erred in granting the appellees a new trial.It appears from affidavits that, while the jury was deliberating, counsel for appellees left the courtroom on being assured that the court would notify them when the jury returned with their verdict.The court failed to so notify counsel and the verdict was returned and read while they were absent.The next day the court required the jurors to reassemble and a poll was taken at that time.Four of the jurors stated that the verdict as rendered was not theirs.The appellant thereupon moved the court that an open hearing be conducted in the matter of the polling of the jury.The court overruled this motion, but permitted the appellant to file the affidavits of five of the jurors, in which three of those who had answered the poll in the negative changed their minds and now affirmed that the original verdict was their verdict.Motion and grounds for a new trial were filed then and the court sustained the motion and granted a new trial, saying that he did so chiefly because the appellees' counsel were not granted an opportunity to poll the jury at the rendition of the original verdict.

The appellant argues that it was the duty of appellees' counsel to be in court at the time the verdict was rendered and that their right to poll the jury was waived, or lost, by their own act in relying upon the court to bring to their attention the fact that the jury had returned.

It is not necessary to decide whether the right to poll the jury is an absolute one in a civil case.There seems to be a division of authority on the question.Some courts hold that the right rests in the sound discretion of the court.Section 324, Civil Code of Practice, provides: '* * * either party may require the jury to be polled--* * *.'In any event, the right is recognized in Kentucky in criminal cases although it may be waived.Johnson v. Commonwealth, 308 Ky. 709, 215 S.W.2d 838.

Most cases from other jurisdictions hold that, where counsel relies upon the sheriff, clerk of the court, or court attaches, to notify him when the jury returns with the verdict, and they fail to do so, he has waived his right to poll through his own neglect.The reasoning seems to be that the primary duty is on counsel to try his case, and if he appoints an agent to assist him, he must bear the consequences of the agent's neglect or failure to carry out his instructions.In Seaton v. Smith, 45 Kan. 43, 25 P. 222, an identical situation arose and the Kansas court declared that it was not reversible error when the judge, through oversight, failed to notify counsel, even though the court...