Kuykendall v. Southern Ry. Co., 80-1642
| Decision Date | 07 July 1981 |
| Docket Number | No. 80-1642,80-1642 |
| Citation | 652 F.2d 391 |
| Parties | Mack G. KUYKENDALL, Appellee, v. SOUTHERN RAILWAY COMPANY, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Roy McBee Smith, Spartanburg, for appellant.
Matthew A. Henderson, Spartanburg (Toney J. Lister, C. Tyrone Courtney, Spartanburg, on brief), for appellee.
Before HAYNSWORTH, Senior Circuit Judge, and PHILLIPS and ERVIN, Circuit Judges.
A jury composed of seven persons brought in a verdict for the plaintiff in this case under the Federal Employers Liability Act, 45 U.S.C.A. §§ 51, et seq. The defendant had objected to submission of the case to a jury of more than six persons, but its objection was overruled, as was its later motion for a new trial.
Before trial, the district judge directed that eight jurors be drawn from a list of sixteen veniremen. After each side struck four, the remaining eight were called and empanelled. There was no designation of alternate jurors. After closing arguments, the court announced out of the presence of the jury that the case would be submitted to the eight jurors, all of whom would participate in the deliberations. The defendant's objection was overruled, but before actual submission, however, one of the eight was excused for illness and the case was actually submitted to the remaining seven.
It is evident that the judge and each of the lawyers had a different notion about the composition of the jury. Clearly, the judge believed that, in his discretion, he could allow all of the jurors who remained in good health to participate in the deliberations so long as they numbered at least six. Defense counsel understood that there was to be a jury of six regular jurors and two alternates, the six to be drawn from the first twelve veniremen and the two alternates from the remaining four. The exercise of his peremptory strikes was consistent with this understanding; the first three were directed to persons among the first twelve on the list while the extra strike provided by Rule 47(b) of the Federal Rules of Civil Procedure was directed to one of the last four. Both sides refer to an early informal conversation with the judge in which there was a discussion of a possibility that the jury might be reduced from eight to six by allowing each side an additional strike following closing arguments. Discussion of that novel procedure for the designation of alternate jurors, says defense counsel, reinforced his belief that in some manner two of the eight were to be designated as alternates and the case would be submitted to a jury of six. Plaintiff's counsel, on the other hand, understood from the outset that the case would be submitted to all eight jurors if all eight were healthy and in the box at the time of submission. His four peremptory challenges were all directed to persons among the first twelve on the list.
Innovations by imaginative trial judges may lead to useful procedural improvement, but adherence to established mandatory...
To continue reading
Request your trial
-
Haralampopoulos v. Kelly
...on, which hinge on the appellant not having agreed to allow the alternates to deliberate, are inapposite. See Kuykendall v. Southern Railway Co.,652 F.2d 391, 393 (4th Cir.1981); Cabral v. Sullivan,961 F.2d 998, 1000 (1st Cir.1992); Jones v. Sisters of Providence in Washington, Inc.,140 Was......
-
U.S. v. Myers
...1361 (4th Cir.1978); United States v. Virginia Erection Corp., 335 F.2d 868, 870-73 (4th Cir.1964); see also Kuykendall v. S. Railway Co., 652 F.2d 391, 393 (4th Cir.1981) ("We have adopted a per se rule of reversal in criminal cases where alternate jurors were allowed to retire with the ju......
- U.S.A. v. Banks-Giombetti, 00-1869
-
Cabral v. Sullivan, Civ. A. No. 86-0259-Y.
...appropriate in civil cases where alternate jurors are allowed to retire with the deliberating jury. Kuykendall v. Southern Railway Co., 652 F.2d 391, 393 (4th Cir.1981) (Haynsworth, J.). But see Hanson v. Parkside Surgery Center, 872 F.2d 745, 749 (6th Cir.1989), cert. denied sub nom., Hans......