Marshall Durbin, Inc. v. Tew
| Decision Date | 27 February 1980 |
| Docket Number | No. 51701,51701 |
| Citation | 381 So.2d 152 |
| Parties | MARSHALL DURBIN, INC. v. Archie TEW. |
| Court | Mississippi Supreme Court |
Watkins, Pyle, Ludlam, Winter & Stennis, Richard G. Cowart, David B. Grishman, Jackson, for appellant.
Tullos, Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
Before ROBERTSON, WALKER and LEE, JJ.
WALKER, Justice, for the Court:
This is the second appeal in a personal injury action brought by the appellee, Archie Tew, against Marshall Durbin, Inc. as a result of the collision of a truck owned by Marshall Durbin with an Illinois Central Gulf Railroad Company train in Mize, Mississippi, on June 20, 1975.
The collision resulted in the spilling of chicken waste around the area of the collision, and Tew, as police chief of Mize, was required to work in this area, thus exposing him to the putrid odor of the chicken waste. Tew's basis for damages was his allegation that being exposed to this odor caused injury to his sense of taste and smell as well as other ailments and that these injuries were a result of the negligence of Illinois Central and Marshall Durbin.
At the first trial, the trial judge directed a verdict for Illinois Central and submitted Marshall Durbin's liability to the jury. The jury returned a verdict against Marshall Durbin for $18,000.00. Marshall Durbin appealed the jury verdict on several grounds, and on March 1, 1978, this Court by written opinion, Marshall Durbin, Inc. v. Tew, 362 So.2d 601 (Miss.1978), affirmed on the issue of Marshall Durbin's liability, but reversed and remanded the cause for retrial on the issue of damages, stating that the verdict of $18,000.00 was excessive and unreasonable where the medical bills totalled only $252.00, where there was no hospitalization required, no time was lost from Tew's employment, and where there was no permanent disability.
On November 7, 1978, a new trial was held on the issue of damages only and the jury returned a verdict for $20,500.00.
Following the verdict of the jury, Marshall Durbin alleged in his motion for a new trial that the defendant was prejudiced by the presence of a juror on the jury who had been recently represented by Tew's attorney. Durbin filed a motion and an amended motion for a remittitur, or in the alternative, for a new trial, assigning this and other errors. In support of the motion, Durbin presented sworn statements from its corporate representative and from all its counsel present during the trial that each did not have knowledge of the juror's relationship with Tew's attorney and that if they had known of this relationship, the juror would have been challenged either peremptorily or for cause.
Counsel for Marshall Durbin, who was present during voir dire, also stated for the record that, during voir dire, the jury was questioned as to past and present representation by counsel for the parties and that this particular juror remained silent.
Counsel for Mr. Tew testified that he had represented the particular juror in the past, but was not representing him at the present time, stating that the case in which he represented the juror had been settled and that the release in the matter was executed on October 21, 1978, which was approximately two weeks prior to this trial. Tew's counsel further testified that he did not recall if the court's voir dire had included past and present representation by counsel for the parties. At the conclusion of the evidence, the trial court considered the motions and found the jury to be fair and impartial, and that the verdict of the jury was not grossly excessive. The court then overruled the post-trial motion. We reverse.
Marshall Durbin assigns as error, inter alia, that:
The trial court erred in refusing to grant a new trial where defendant was prejudiced in selecting an impartial jury because a juror, being recently represented by counsel for the appellee, failed to respond when questioned on voir dire about such representation.
Mississippi Constitution Article III, section 31 states that "The right to a jury trial is an inviolate right," and this provision has been interpreted in Mississippi Power Company v. Stribling, 191 Miss. 832, 3 So.2d 807, 810 (1941), and other cases too numerous to mention to mean that: "It is the duty of the court to see that a competent, fair and impartial jury is...
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Mack v. State
...information concerning a prospective juror which impacts upon the juror's ability to be fair and impartial. See, Marshall Durbin, Inc. v. Tew, 381 So.2d 152, 155 (Miss.1980) (Judgment reversed where plaintiff's counsel failed to disclose that he represented one of jurors in violation of his......
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...prospective juror. See, Implement Dealers Mutual Ins. Co. v. Castleberry, 368 S.W.2d 249 (Tex.App.--Beaumont 1963); Marshall Durbin, Inc. v. Tew, 381 So.2d 152 (Miss.1980), and, Jackson v. State, 374 A.2d 1 (Del.Supr.1977). In Castleberry, a juror who had been represented by the plaintiff's......
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