Graham v. Columbia Ry., Gas & Electric Co.

• Decision Date: 16 November 1915
• Docket Number: 9233.
• Parties: GRAHAM ET AL. v. COLUMBIA RY., GAS & ELECTRIC CO.
• Court: South Carolina Supreme Court

86 S.E. 952

102 S.C. 468

GRAHAM ET AL. v. COLUMBIA RY., GAS & ELECTRIC CO.

No. 9233.

Supreme Court of South Carolina

November 16, 1915

Appeal from Common Pleas Circuit Court of Richland County; C.J Ramage, Special Judge.

Action by J. M. Graham and another, partners, against the Columbia Railway, Gas & Electric Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Elliott & Herbert, of Columbia, for appellant.

Lyles & Lyles, of Columbia, for respondents.

HYDRICK J.

Appellant urges two grounds for reversal of the judgment below. The first is that there was error in the manner in which the jury was impaneled. When the case was called, defendant objected to going to trial, because only 20 jurors were present barely enough to complete a list for the striking. Upon the objection being overruled, defendant suggested that the court ascertain if any of those present were disqualified, and it turned out that one of them was, because he was an employé of defendant. Thereupon the court ordered an extra venire to be drawn, and said to the clerk: "The first one you get subp na him, and we will have a juror." A juror having come in, his name was put on the list, and the court ordered the case to trial, over defendant's objection. While this method of procedure was not in accord with either the letter or the spirit of section 4042 of the Civil Code of 1912, which provides the manner of impaneling a jury for the trial of civil causes, and is not to be commended, it cannot avail defendant as ground for reversal of the judgment, because defendant did not make it appear to the trial court, and has not shown to this court, that it was prejudiced. The intent of the statute is to give litigants a fair and impartial jury, and to that end, they are allowed to challenge any number of jurors for cause, and, in addition, each side is given the right to reject 4 peremptorily by striking their names from the list, without assigning cause.

It may be that, in this case, defendant had no objection whatever to the juror whose name was put on the list. It may have preferred him above all others on the list. The record shows nothing to the contrary. Under such circumstances, the objection is purely technical, and to reverse the judgment upon such a technicality in procedure would be trifling with the administration of justice. If defendant had made it appear to the trial court, as it could have done, if the fact had been so, that it had exhausted its peremptory challenges in striking from the list the names of others not wanted by it on the panel, and that it was thereby forced by the action of the court to accept the juror so put upon the list, and that he, too, was objectionable to defendant, a different case would have been made; and, no doubt, if those facts had been made to appear, the trial...