Gray v. Sherwood
| Decision Date | 05 August 1983 |
| Citation | 436 So.2d 836 |
| Parties | Betty Jane GRAY, as Administratrix of the Estate of Evart Bail, deceased v. Dr. James W. SHERWOOD, Dr. Henry G. Herrod, Jr., and Dr. James T. Gascoigne, et al. 81-425. |
| Court | Alabama Supreme Court |
John T. Roach, Jr., Birmingham, for appellant.
Robert B. Harwood, Jr. of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellees.
This is a wrongful death action.
On 6 January 1980, Mr. Evart Bail died as a result of a ruptured abdominal aortic aneurysm while a patient of the defendant doctors at Druid City Hospital, Tuscaloosa, Alabama. During the eight days that Bail was a patient in that hospital, he was treated for pancreatitis. Betty Jane Gray, as administratrix of the estate of her father, Evart Bail, alleges his death was due to the negligence of the defendants: Dr. James W. Sherwood, Dr. Henry G. Herrod, and Dr. James T. Gascoigne and others.
The case was tried to a jury in Tuscaloosa, which returned a verdict for the three doctors. The trial court overruled Gray's motion for a new trial. This appeal followed.
The dispositive issue on appeal is whether the trial court erred to reversal in refusing to grant plaintiff's challenges for cause of two of the prospective jurors. With regard to this issue, Alabama Power Co. v. Henderson, 342 So.2d 323, 327 (Ala.1977) provides:
In Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961), this court outlined a more pointed test to be used in determining when jurors could be successfully challenged for cause pursuant to the above statute:
Id., 273 Ala. at 146, 135 So.2d 391.
Under these principles of law we review the trial court's action regarding whether there was an abuse of discretion.
A similar issue was presented in Ballard v. State, 225 Ala. 202, 142 So. 668 (1932), where this court considered whether there was error in refusing the defendant's challenge for cause of a juror who, after testifying he could give the defendant a fair trial, winked at the State's solicitor [now district attorney]. Regarding the winking incident, the following statement was made:
Id., 225 Ala. at 203, 142 So. 668.
Ballard was reversed for the combined effect of this and another separate error.
The conduct and actions of the challenged jurors in the instant case match and surpass the degree of manifested predisposition shown by the Ballard veniremen. During the voir dire examination of the jury panel, a prospective juror, Reba Whaley, stated that defendants "Dr. Herrod and Dr. Sherwood have been our family doctors for a number of years." When asked whether that fact would affect her ability to fairly and impartially hear the evidence in the case, she responded, "I would rather not sit on it." The plaintiff's attorney did not further question Whaley.
Another prospective juror, Michael Webber, during voir dire responded: "I know Dr. Gascoigne; he is our company doctor." When asked whether he had been treated by Dr. Gascoigne, Mr. Webber replied, Mr. Webber then stated: "I want to ask to be struck from this jury." Webber was asked no further questions.
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