Kunk v. Howell

• Decision Date: 11 January 1956
• Citation: 40 Tenn.App. 183,289 S.W.2d 874,73 A.L.R.2d 1304
• Parties: Clem KUNK et al. v. Patricia HOWELL. Patricia HOWELL et al. v. Clem KUNK et al. 40 Tenn.App. 183, 289 S.W.2d 874, 73 A.L.R.2d 1304
• Court: Tennessee Court of Appeals

Page 874

289 S.W.2d 874

Clem KUNK et al. v. Patricia HOWELL.

Patricia HOWELL et al. v. Clem KUNK et al.

40 Tenn.App. 183, 289 S.W.2d 874, 73 A.L.R.2d 1304

Court of Appeals of Tennessee, Eastern Section.

Jan. 11, 1956.

Certiorari Denied by Supreme Court April 27, 1956.

[40 TENNAPP 186] Ogle & Ogle, Sevierville, and Mason Douglass, Dayton, Ohio, for Clean Kunk and others.

Kramer, Dye, McNabb & Greenwood, Knoxville, and Wynn & Wynn, Sevierville, for Patricia Howell.

Poore, Cox, Baker & McAuley, Knoxville, for Carl Huband.

McAMIS, Presiding Judge.

This is an action for damages growing out of a three-car collision which occurred August 8, 1953, on U. S. Highway 441 at a point 6 miles west of Sevierville. The plaintiffs are Clem and Helen Kunk, parents of Elmer B. Kunk, who was operating their Plymouth automobile and lost his life at the time of the collision. They appeal from a verdict and judgment in favor of the defendant Carl Huband. The defendant Patricia Howell appeals from a judgment for Mr. and Mrs. Kunk in the sum of $21,900.

The decedent, Elmer B. Kunk, 19 years of age and a resident of Dayton, Ohio, accompanied by three other men, was returning to his home from a trip to Florida when the collision occurred. He was driving west toward Knoxville. Passing for the time being the question of [40 TENNAPP 187] her identity, Patricia Howell, a resident of Indiana accompanied by another young lady, wad driving eastwardly toward Sevierville in a Chevrolet car. The defendant Huband, accompanied by his wife and child, was driving an Oldsmobile from east to west following the Kunk car.

Mr. and Mrs. Kunk sued Miss Howell and Huband jointly, claiming that the Howell car, while being negligently operated, went out of control in rounding a curve, crossed from the south to the north side of the highway which was the deceased's proper side and there struck the Kunk car and that the defendant Huband negligently operated his car in such manner that it then struck the Kunk car from the rear throwing the driver out on the pavement and causing injuries from which he later died. Service of process was upon the Secretary of State as provided by statute. Both defendants filed pleas of the general issue.

We consider first the assignments of error of Patricia Howell under which she insists that the Court erred in limiting defendants to two peremptory challenges to the jury panel and in requiring her to accept the panel or exercise her second challenge before the replacement of a vacancy caused by the exercise of her first peremptory challenge; that the Court erred in not declaring a mistrial after one of the jurors announced that he passed the scene of the collision before the cars were moved and, finally, if hearsay evidence of her identity had been excluded, there would have been no evidence to sustain a verdict against her and that her motion for a directed verdict should now be sustained and the suit dismissed. Miss Howell will be referred to as defendant.

[40 TENNAPP 188] Although a suit for property damage by the Kunks had been ordered tried with the suit for wrongful death, when the question of the number of challenges available to defendants was raised a nonsuit was taken in the suit for property damages. This left only one suit before the Court and the question is: Where two defendants are sued in the same action for a single injury due to separate acts of each is each defendant entitled to the number of challenges for cause allowed by statute?

Code, Sec. 10019 provides:

'Either party to a civil action may challenge two jurors without assigning any cause.' (Italics ours.)

In the next succeeding Section, Code, Sec. 10020, it is provided that, in criminal cases, 'each defendant' shall be entitled to the number of challenges available to a single defendant.

There is much to be said in support of defendant's, insistence that where separate acts of more than one defendant are involved and their interests may well be antagonistic each should be entitled to the same number of challenges as if he were the sole defendant. Most courts hold that, unless a different treatment is required by statute, each defendant having an interest antagonistic to other defendants is entitled to the full number of peremptory challenges. See Annotation 136 A.L.R. 417.

We have noted above that under the controlling statutes the Legislature uses the term 'each defendant' in dealing with criminal cases. Can we say that this difference in terminology is without significance? We think a negative answer is required by Blackburn v. Hays, 44 Tenn. 227, 230, where the Court said:

[40 TENNAPP 189] 'It will be observed that there is a difference in the language of the Act giving the right to challenge in criminal and civil cases. In criminal cases the right is given to each party. In criminal causes, though the defendants are tried jointly, yet the judgment may be widely different. In civil actions the judgment is joint; they are sued jointly.

'We are, therefore, of opinion, in civil cases, each party to the suit, whether comprising one or more plaintiffs, is entitled to but two peremptory challenges.

'The Act of 1805, allowing but two challenges in civil cases, was carried into the Code, and is embraced in Section 4012. The long established practice has been to allow but two challenges in civil cases, and we are unwilling, at this time, after so long an acquiescence by the profession, to change the construction that has been given to that Act.' And see to the same effect Bruce v. Beall, 100 Tenn. 573, 579, 47 S.W. 204 and The History of a Lawsuit, Gilreath, Section 323, note 55 where the learned author calls attention to the difference in the statutory requirements in civil and criminal cases.

It will be observed that the practice is founded upon a construction of the statute without regard to the question of diversity of interests and the statute was re-enacted in the Code of 1932 long after the Supreme Court construed the Act contrary to the insistence now made. Peremptory challenges are allowed by the Legislature as an act of grace and can be exercised as a matter of right only to the extent allowed by statute.

We think the question of the propriety of requiring defendant to accept the panel or exercise her second peremptory challenge before filling the vacancy caused [40 TENNAPP 190] by the first challenge is governed by Mahon v. State, 127 Tenn. 535, 548, 156 S.W. 458, and Hale v. State, Tenn., 281 S.W.2d 51. In the first of these cases the Court applied Chapter 32, Acts of 1911, now Code Section 10654, and held that no reversal could be had on the complaint that peremptory challenges were denied if the jury which tried the case was a competent and impartial jury. In this case the right was not denied. The Court merely required defendant to exercise her right to challenge in a manner which she claims to have been erroneous. As in that case and in the Hale case there is no showing in this that the alleged error resulted in the acceptance of an incompetent juror. Under the Act we cannot reverse unless prejudice results from the error claimed. If error, no prejudice is shown to have resulted from the manner of selecting the jury.

It is next insisted that a mistrial should have been declared when, after two of plaintiffs' witnesses had been examined, Juror Williams announced to the Court that their testimony recalled to his mind that he passed the scene of the accident before the cars had been moved. Upon being interrogated by the Court and by counsel out of the presence of the remaining jurors, he stated unequivocally that he gained no impression as to who was at fault; that his impression was that there were two cars on the right side and one on the left but that if the proof should be otherwise he could and would accept the proof on that question; that he knew nothing material about the case and would try it on the law and the evidence. The Court thereupon inquired if the parties would agree either to retain this juror or try the case before the remaining members of the panel. Upon defendant's refusal to agree to either proposal the Court [40 TENNAPP 191] held juror Williams competent and overruled defendant's motion for a mistrial. There is no proof that he made any statement during the deliberations of the jury based upon any personal knowledge he may have had about the case.

Under ancient common law, jurors were selected because of their personal knowledge of the facts. Under the modern doctrine however, jurors who have such personal knowledge of material facts as will tend to form an opinion based upon bias are regarded as incompetent to sit as jurors even though they may feel that they can render an impartial verdict. Turner v. State, 111 Tenn. 593, 69 S.W. 774.

Whether a juror's knowledge is of such a nature as will be likely to bias him is a matter addressed to the sound discretion of the trial court. Cf. Conatser v. State, 80 Tenn. 436 and see 50 C.J.S., Juries, Sec. 236, p. 988. If the knowledge of the juror is of such a nature as to raise a strong inference or presumption of bias he should be excused. But a knowledge of undisputed facts or of facts merely collateral or incidental will not render incompetent a juror who disclaims any opinion on the merits of the case. See 31 Am.Jur. 664, Jury, ...