Francone v. Southern Pac. Co.
| Decision Date | 13 January 1945 |
| Docket Number | No. 10986.,10986. |
| Citation | 145 F.2d 732 |
| Parties | FRANCONE et al. v. SOUTHERN PAC. CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Dan Abbott, of Abilene, Tex., for appellants.
Eugene R. Smith and Maury Kemp, both of El Paso, Texas, for appellee.
Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
This appeal is from a judgment for the defendant, entered upon the verdict of a jury, in a suit to recover damages for personal injuries. The decisive question presented is whether the trial court committed reversible error in disallowing two of appellants' challenges for cause in the selection of the jury.
The record discloses that two of the jurors on the panel presented to the plaintiffs were employees of the defendant, Southern Pacific Company. A timely challenge for cause was made by the plaintiffs, grounded upon this employment relationship; but the court declined to excuse the jurors, holding that they were not disqualified by reason thereof. These jurors then were peremptorily challenged by the appellants who, in the course of selecting the jury, exhausted all of their peremptory challenges. The trial proceeded, and resulted in a verdict and judgment for the defendant.
Upon motion for a new trial filed by appellants, they alleged and offered to prove that, among the jurors who tried the case, there were others that were objectionable to them and upon whom they would have used their peremptory challenges if the court had not, by its erroneous ruling upon their challenges for cause, forced them to use two of their peremptory challenges upon jurors who were employees of the appellee.
Appellee contends that the ruling of the trial court was not erroneous, and that, if it was, no harm resulted to appellants for the reasons that the challenged jurors did not sit upon the trial, that appellants did not attempt to challenge any of the jurors who tried the cause, and that in any event the appellee was entitled to a directed verdict upon the evidence submitted.
Since the passage of an act of Congress, approved July 20, 1840, the federal courts, with exceptions not relevant here, have applied the laws of the state where the court was sitting with respect to the qualifications of jurors in both civil and criminal cases.1 Under the common law, for sound and obvious reasons, a person in the private employment of another was incompetent as a juror in a suit to which the employer was a party.2 The law upon the subject was stated by Blackstone in this language:
"A principal challenge is such where the cause assigned carries with it prima facie evident marks of suspicion either of malice or favour; as, that a juror is of kin to either party within the ninth degree; that he has been arbitrator on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him; all these are principal causes of challenge; which, if true, cannot be overruled, for jurors must be omni exceptione majores."3
The State of Texas by statute adopted this rule of the common law in 1840, and its courts have since adhered consistently to it.4
Since the challenges for cause should have been sustained, the question remains whether the court's error in its ruling thereon was prejudicial to the appellants. Upon this question, too, the Texas jurisprudence holds to the general rule that the right of peremptory challenge is a substantial right, and a denial thereof is a material error that requires reversal of the case unless the party in whose favor the error is committed proves beyond a reasonable doubt that the error was harmless.5
The erroneous ruling of the court in effect reduced by two the number of peremptory challenges available to the appellants, and the remainder of the challenges were exhausted. The right to challenge peremptorily may be exercised upon reason, whim, or caprice, and there is no proof whatsoever to establish that appellants would not have exercised additional peremptory challenges if their right to do so had not been denied them by the...
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United States v. Boyd, 29793.
...the refusal to strike for cause had been erroneous, this action by the defense would not have cured the error. Francone, et al. v. Southern Pac. Co., 5 Cir. 1944, 145 F.2d 732. The effect of this action would have been the reduction in the number of peremptory challenges allowed the defense......
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Getter v. Wal-Mart Stores, Inc., WAL-MART
...that was a party to the suit. Id. (citing Gladhill v. General Motors Corp., 743 F.2d 1049 (4th Cir.1984); Francone v. Southern Pac. Co., 145 F.2d 732 (5th Cir.1944)). "In these situations, the relationship between the prospective juror and a party to the lawsuit 'point[s] so sharply to bias......
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U.S. v. Allsup
...defense peremptorily struck the disputed jurors and used all of its challenges) would not have cured the error. Francone, et al. v. Southern Pac. Co., 5 Cir. 1944, 145 F.2d 732. The effect of this action would have been the reduction in number of peremptory challenges allowed the defense, a......
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Zia Shadows, L.L.C. v. City of Las Cruces
...Vasey v. Martin Marietta Corp. , 29 F.3d 1460, 1468 (10th Cir. 1994) (brackets and citations omitted) (citing Francone v. S. Pac. Co. , 145 F.2d 732, 733 (5th Cir. 1944) (applying the traditional rule)).Nor should we question Crawford now. Even if we had authority to overturn Supreme Court ......
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Table of Cases
..., 957 F.2d 1268, 1276 (5th Cir.), Form 6-16 Frame v. S-H Inc. , 967 F.2d 194, 203 (5th Cir. 1992), §4:138 Francone v. Southern Pac. Co., 145 F.2d 732, 733 (5th Cir. 1944), §10:25 Frank America v. Champion Road Machinery Ltd ., 961 F.Supp. 398, 405 (N.D.N.Y. 1997), §7:61 Franklin v. Shelton ......
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Jury issues
...See United States v. Salamone , 800 F.2d 1216, 1225-28 (3rd Cir. 1986). • Is an employee of a party. Francone v. Southern Pac. Co. , 145 F.2d 732, 733 (5th Cir. 1944). • Was selected through an improper process. See Pilchak v. Camper , 741 F.Supp. 782 (W.D.Mo. 1990). • Does not have suffici......