Harrington v. Nicholson

• Decision Date: 16 November 1936
• Docket Number: 14380.
• Citation: 188 S.E. 372,182 S.C. 38
• Parties: HARRINGTON v. NICHOLSON.
• Court: South Carolina Supreme Court

188 S.E. 372

182 S.C. 38

HARRINGTON v. NICHOLSON.

No. 14380.

Supreme Court of South Carolina

November 16, 1936

Appeal from Common Pleas Circuit Court of Marion County; E. C Dennis, Judge.

Action by Ray Harrington against A. R. Nicholson, wherein judgment was rendered in favor of the plaintiff. From an order granting a new trial on motion of the defendant, the plaintiff appeals.

Reversed.

W. B Norton, of Marion, and W. D. Jenerette, of Mullins, for appellant.

L. M Gasque, of Marion, and Gibson & Muller, of Dillon, for respondent.

BONHAM Justice.

Appellant brought action against respondent to recover damages for alleged malicious prosecution. The case was tried by Judge Dennis, with a jury, at the December, 1934, term of the court of common pleas for Marion county, and resulted in a verdict for plaintiff. The defendant made a motion for new trial on three grounds, only one of which was considered by the court viz.: "That the jury was composed of two relatives of the plaintiff, unknown to the plaintiff or unknown to his attorney." The motion was granted, and the plaintiff appeals on three exceptions, all of which relate to alleged error in granting new trial on the ground of relationship of two of the jurors to plaintiff.

In support of the motion for new trial, appellant's counsel introduced a paper signed by Mrs. Eliza Johnson, who certifies that she personally knows Henry Carter (one of the jurors in the stated case); that his wife, Aurilla, is the first cousin of the mother of Henry Carter. She further certifies that she is personally acquainted with W. W. Price (another of the jurors); that he is also a first cousin of Mrs. Harrington, the mother of Ray Harrington.

This paper is not sworn to by Mrs. Johnson. B. B. O'Neal makes oath that he saw her sign it.

They also introduced the affidavit of the respondent to the effect that he knows the jurors Henry Carter and W. W. Price; that he lives within a few miles of them, but had no knowledge nor intimation that there was a relationship between them and appellant; that after the trial of the case between Ray Harrington and himself, he was told by others that such relationship existed and went to Mrs. Eliza Johnson, who made the statement giving the relationship of the parties, which he attempts to set out in his affidavit.

As against this showing for the motion, the appellant introduced affidavits of Henry Carter and W. W. Price, who swear, each of them, that he is not related to Ray Harrington by blood or marriage; that if there is any relationship he does not know of it, has never heard of it, and has never recognized it.

At the hearing of the motion the trial judge said: "I had all of these jurors called in and asked about the relationship, and they say they didn't know they were kin. I am inclined to think this verdict ought to be above suspicion; and this old lady says the kinship was thus and so, by telling the parents. She doesn't just give an opinion; she tells who their fathers and mothers were, and all, who they married, and brings one clearly within the prohibition. I think I will have to set the verdict aside on grounds of relationship."

When his honor said, "I had all the jurors called in and asked about the relationship, and they said they didn't know they were kin," he probably meant that before the jury was struck, the trial judge of his own motion stated to the whole panel of jurors the names of the parties to the action and instructed them if any of them were related to either party to make it known by rising. One juror answered that he was related to the plaintiff, and his name was withdrawn from the list. The jurors were not put on their voir dire. At the hearing of the motion, the counsel for appellant offered to...