Knop v. McCain

• Citation: 561 So.2d 229
• Parties: Beverly S. KNOP v. Dr. Paul McCAIN. 88-922.
• Decision Date: 22 December 1989
• Court: Supreme Court of Alabama

Page 229

561 So.2d 229

Beverly S. KNOP v. Dr. Paul McCAIN.

88-922.

Supreme Court of Alabama.

Dec. 22, 1989.

Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.

John S. Key of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee.

ON APPLICATION FOR REHEARING

HORNSBY, Chief Justice.

The original opinion is withdrawn and the following substituted therefor:

Beverly S. Knop filed a complaint against Dr. Paul McCain and McCain, Thomas, New, Manifold, P.A., alleging that they had negligently failed to diagnose and to properly treat endometriosis. During the voir dire examination of the venire, two potential jurors, Ms. Bailey and Ms. Fuller, were challenged for cause by the plaintiff. The trial court denied Knop's challenges for cause after further questioning the jurors. A jury trial was then held, resulting in a verdict for the defendants. Knop's appeal is based on a claim of error in the trial court's denial of her challenges for cause.

The questions by counsel and the trial court of jurors Bailey and Fuller and their answers were as follows:

"MR. CROOK: [plaintiff's counsel]

"Is there any reason in the world, namely either you, any members of your immediate family, that have gone to Dr. McCain, gone to partners in his group, that either he has delivered your baby, or other partners in his group has delivered your babies, that maybe he is going to deliver your baby, or may deliver his baby [sic]--is there anything about this community, the number of physicians in this community that would just make you feel uncomfortable being on this jury, and would put you in a position where you don't think that you can be honestly fair and impartial to Ms. Knop, if such an occasion arose?

"MS. BAILEY: (Raising hand.)

"MR. CROOK: Ms. Bailey, let me ask you a specific question. Do you believe that you can be completely fair and impartial to Mrs. Knop, based on the evidence that you will hear?

"MS. BAILEY: I think it would make me uncomfortable; being a teacher, I guess lawsuits bother me a little bit.

"THE COURT: I did not understand what you said.

"MS. BAILEY: It would bother me a little bit.

"THE COURT: Being a teacher, lawsuits bother you a little bit?

"MS. BAILEY. Yes.

"MR. CROOK: Let me ask you that other question: Is there anything here that you don't like about lawsuits?

"MS. BAILEY: I guess my personal opinion is that people are too quick to sue. The evidence would have to be, I guess, I guess the evidence would have to be overwhelming for your client before I would be willing to give her money."

With respect to Juror Fuller, the following transpired. "MR. CROOK: Thank you again for your honesty. I am not trying to put you on the spot or anything, but is there anyone else?

"MS. FULLER: I have something that you haven't touched on. I have taught all three of Dr. McCain's children.

"MR. CROOK: That is Ms. Jones?

"MS. FULLER: No. Ms. Fuller. I, also am at this time, teaching Dr. New's daughter. I taught his other two children.

"MR. CROOK: By the fact that you have taught his children and maybe, by the fact that you are going to be teaching Dr. New's children, is there something about that that would prevent you from being completely fair and impartial to Mrs. Knop in this particular case?

"MS. FULLER: I think it would have been difficult for me, yes.

"MR. CROOK: Do you think that if the evidence came down as such that maybe the evidence pointed to a slight degree of negligence on Dr. McCain's part, would you be unable to be completely fair and impartial to Mrs. Knop--you may not understand that?

"MS. FULLER: I understand what you are saying. I would like to believe that I would be fair and impartial, but ...

"MR. CROOK: I think you are saying that there is some doubt in your mind that you can be?

"MR. KEY: Your Honor, we are going to object to him just going on and on and trying to suggest answers to the jurors that would misqualify [sic] them from participating in this case.

"THE COURT: I overrule the objection. There are limits.... I think you are aware of them.

"MR. CROOK: Yes, sir, I just want to try to make sure that I understand. Could you be fair and impartial to Mrs. Knop, based on the evidence that you hear, and also based upon your relationship with Dr. McCain's children?

"MS. FULLER: Probably.

"MR. CROOK: Is there any doubt in your mind?

"MS. FULLER: Some."

After the plaintiff's examination of the venire, the defendant examined Jurors Bailey and Fuller in the following manner:

"MR. KEY: (defendant's counsel) Let me direct this question to ... Ms. Fuller, Ms. Bailey, ... right there--you folks indicated--and I will repeat what you said--you indicated for one reason or the other, if you were selected to be a juror in this case, you might be uncomfortable, or words to that effect.

"If, after we go through the striking process here, if you find yourselves to be members of the jury in this case, would you be able to listen to the evidence in this case and listen to the Judge when he tells you about the law and render a decision based on the evidence and the law?

"Would you be able to do that Ms. Fuller?

"MS. FULLER: Yes, sir.

"....

"MR. KEY: Ms. Bailey?

"MS. BAILEY: Yes, sir."

Knop challenged Jurors Bailey and Fuller for cause. The trial court denied Knop's challenges for cause after the court's own questioning. In this regard, the following transpired:

"THE COURT: We have Ms. Fuller, ... Ms. Bailey, ... Let me ask you a question and I will ask it together, but I would like individual answers.

"Let me ask you, whether or not, after hearing all of the evidence in this case and the law that I will explain to you, whether or not you could base a verdict or return a verdict based on that evidence solely and upon the law that I will give you. Without regard to any personal feelings or biases, could you lay all that aside and try this case based on what you hear in this courtroom and on nothing else? Is there any one of you that could not do that?

"(No response.)

"THE COURT: I will allow you to ask a further question.

"MR. KEY: We have no further questions.

"MR. CROOK: We have nothing else, Your Honor.

"THE COURT: All right, thank you, you may go. I will show those challenges overruled."

The grounds on which a juror may be challenged for cause are set out in Code 1975, § 12-16-150. Additional grounds for challenge for cause under the common law still exist where they are not inconsistent with the statute. Kinder v. State, 515 So.2d 55, 60 (Ala.Crim.App.1986).

In challenging a juror for cause, the test to be applied is that of probable prejudice. Alabama Power Co. v. Henderson, 342 So.2d 323, 327 (Ala.1976). While probable prejudice for any reason will serve to disqualify a prospective juror, qualification of a juror is a matter within the discretion of the trial court. Id.; Black Belt Wood Co. v. Sessions, 514 So.2d 1249, 1255-56 (Ala.1986); Village Toyota Co. v. Stewart, 433 So.2d 1150, 1156 (Ala.1983). This Court must look to the questions propounded to, and the answers given by, the prospective juror to see if this discretion was properly exercised. Id. A reversal is not appropriate absent abuse of this discretion. Alabama Power Co. v. Henderson, 342 So.2d at 327; Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961); Mutual Building & Loan Ass'n v. Watson, 226 Ala. 526, 147 So. 817 (1933); Brown v. Woolverton, 219 Ala. 112, 115, 121 So. 404 (1928); see Clark v. State, 443 So.2d 1287 (Ala.Crim.App.1983).

Ultimately, the test to be applied is whether the juror can set aside her opinions and try the case fairly and impartially, according to the law and the evidence. Tidmore v. City of Birmingham, 356 So.2d 231 (Ala.Crim.App.1977), cert. denied, 356 So.2d 234 (Ala.), cert. denied, 439 U.S. 836, 99 S.Ct. 120, 58 L.Ed.2d 132 (1978); see Willingham v. State, 262 Ala. 550, 552, 80 So.2d 280 (1955); Mahan v. State, 508 So.2d 1180 (Ala.Crim.App.1986). This determination, again, is to be based on the juror's answers and demeanor and is within the sound discretion of the trial judge. Thus, a prospective juror should not be disqualified for prejudices or biases if it appears from his or her answers and demeanor that the influence of those prejudices and biases can be eliminated and a verdict rendered according to the evidence. See Fordham v. State, 513 So.2d 31, 34-35 (Ala.Crim.App.1986); Jarrell v. State, 355 So.2d 747, 749 (Ala.Crim.App.1978).

The record, as set forth above, shows that both Bailey and Fuller expressed probable prejudice against the plaintiff, contrary to the standard as set forth in Alabama Power Co. v. Henderson, supra; see also Ex parte Rutledge, 523 So.2d 1118 (Ala.1988); Gray v. Sherwood, 436 So.2d 836 (Ala.1983). Juror Bailey, in responding to questions by plaintiff's counsel, stated that in her personal opinion people "are too quick to sue" and that "the evidence would have to be, I guess, the evidence would have to be overwhelming for your client before I would be willing to give her money." Juror Fuller, also in responding to questions from plaintiff's counsel, stated that she "probably" could be fair and impartial to Ms. Knop although there was "some" doubt.

Counsel for the defendants then questioned these two prospective jurors, along with others who had indicated a possible inability to be fair and impartial. The prospective jurors were asked to place themselves in a jury box and assume that they were selected as jurors. They then were to determine whether they would be able to decide the case based upon the evidence and the law as given to them by the court. Both Ms. Bailey and Ms. Fuller answered this question in the affirmative. Plaintiff's counsel then challenged both jurors for cause. The trial court asked the following of both jurors (and others): "[A]fter hearing all of the evidence in this case and the law that I will explain to you, [can you] return a verdict based on that evidence solely and upon the law that I will give you. ...