McCarten v. Connecticut Co.

• Decision Date: 23 December 1925
• Citation: 103 Conn. 537,131 A. 505
• Court: Connecticut Supreme Court
• Parties: MCCARTEN v. CONNECTICUT CO. KRAUSE v. CONNECTICUT CO.

131 A. 505

103 Conn. 537

MCCARTEN v. CONNECTICUT CO.

KRAUSE v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

December 23, 1925

Appeal from Superior Court, New Haven County; John R. Booth, Judge.

Action by Elizabeth McCarten against the Connecticut Company, tried with an action by Nellie L. Krause against the Connecticut Company by stipulation of parties. Verdicts for defendant and plaintiffs appeal from denial of motions in arrest of judgment and to set aside verdict. Plaintiffs moved on appeal to rectify the appeal, which, by stipulation of counsel, was presented with the appeal. No error. Motion to rectify appeal granted.

Charles S. Hamilton, of New Haven, for appellants.

Seth W. Baldwin and Charles A. Watrous, both of New Haven, for appellee.

HAINES, J.

The finding in this case shows that the New York, New Haven &amp Hartford Railroad Company, at the time of the trial, owned the stock of the defendant the Connecticut Company, but had no control whatever over the management of the latter, and that one of the jurors, Mr. Munn, was a pensioner and a former baggage master of the railroad company, and that these facts regarding the juror were unknown to plaintiffs' counsel.

The question raised by the appeal is whether Mr. Munn was thus disqualified for service on the jury panel in the trial of these cases against the Connecticut Company, and, if these facts did disqualify him, the further question is presented whether that disqualification was waived by the plaintiffs by anything disclosed by the record.

Prior to the disposition of these questions, our attention is directed to an application made in this court to rectify the appeal on the ground that paragraph 6 of the finding should be stricken from the record. The paragraph to which objection is made reads as follows:

" (6) The attorney for the plaintiff in the above-entitled cases was aware of the relationship between the defendant, the Connecticut Company, and the said railroad company; and on previous trials of causes against the Connecticut Company had specifically questioned prospective jurors as to their relationship with the said railroad company, as well as with the Connecticut Company."

In the trial court the plaintiffs made a similar motion, basing it upon the claim that the paragraph in question was not supported by the evidence. The trial court filed a memorandum of decision denying the motion and giving reasons therefor. To the application in this court, the defendant entered a general denial, and written arguments were filed under the provisions of General Statutes, § 5836. Attached to the present application are the motion made in the trial court, the memorandum of decision, and the official stenographer's transcript reciting the facts surrounding the examination of the prospective jurors and a statement of what transpired at the hearing on the motion.

The question is whether there are any statements of witnesses or statements or admissions of counsel or any proper matters of judicial notice which can be discovered in the record before us to justify these findings of fact. The evidence given by witnesses is brief, and contains no hint that either plaintiffs or their counsel had any knowledge of the fact that the railroad company owned the stock of the defendant company. Nor do we find anything in the record which in any way shows that plaintiffs' counsel " on previous trials of causes against the Connecticut Company had specifically questioned prospective jurors as to their relationship with the said railroad company as well as with the Connecticut Company."

It is to the noted, moreover, that, if this portion of the finding was justified by anything before the trial court, it was, after all, merely evidentiary in itself as tending to show that counsel knew of the relationship, and this latter is specifically stated as a fact in the opening paragraph of the finding as follows:

" The attorney for the plaintiffs in the above-entitled cases, was aware of the character of the relationship between the defendant the Connecticut Company, and the said railroad."

We find nothing in the record to support this conclusion save the suggestion contained in the court's memorandum of decision:

" * * * It is, however, a fact of common knowledge among the legal profession that some ownership of the Connecticut Company exists in behalf of the railroad, and upon argument of this motion counsel for the defendant stated that plaintiffs' counsel was aware of the character of this relationship. * * * This is not denied, and the court must therefore assume it to be true."

This was obviously the source of the court's conclusion.

We do not think these conditions can fairly be held to be of such " common knowledge" to the legal profession, or to the layman, that it could be specifically found that counsel for the plaintiffs, or the plaintiffs themselves, knew them. Nor do we think it follows that a declaration by defendant's counsel that the plaintiffs' attorney knew must be assumed to be true because the latter made no denial. We do not think the facts upon the record bring this within the rule permitting a conclusive inference. There are too many possible explanations of such a failure to justify invoking the rule. The exact language in which, or the circumstances under which, the statement was made are not of record, nor is it found that the statement was or should have been heard or understood by plaintiffs' counsel. Upon the record as it stands we feel the court was not justified in thus accepting the fact as established. Without a more detailed statement of the subordinate facts, the connection is too tenuous to justify action which might have a vital bearing upon the rights of the plaintiffs. The application to rectify the appeal by striking out paragraph 6 of the finding is granted.

As the record stands then, we come to the first four questions raised by the appeal, and we take up the first ground of error--that denying the motion of the plaintiffs to set aside the verdict by reason of the claimed disqualification of the juror, Mr. Munn.

The disqualification of a juror may be based upon the statute or upon the rules of the common law. In this state a juror is disqualified by statute who is not an elector, who is less than 25 years of age, or who is not esteemed in his community to be a man of good character, approved integrity, sound judgment, and fair education (General Statutes, § 5681), or upon motion of either party a juror is disqualified who has " served at a previous term within a period of five years, on any jury in the court in which such action is pending" (Public Acts of 1925, c. 194).

At common law, a challenge to the polls, as distinguished from a challenge to the array, would lie for want of qualifications, as for alienage or infancy, or a prior conviction for certain infamous crimes, as well as for bias or prejudice. A challenge for this cause could be either a principal challenge or a challenge to the favor, as it was called. Of the former were relationship to either party to the suit, a former service as arbitrator on either side, an interest in the outcome of the suit, either personal or as a member of a corporation, or the relation of master or servant, steward, attorney, landlord or tenant to either party, or that the prospective juror has conversed with either party upon the merits of the case, or has formed or expressed an opinion on the question at issue. Such facts being proved, the disqualification was conclusively presumed. It was a legal conclusion, and it could not be rebutted.

Challenges for favor were founded on probable circumstances of suspicion, as, for example, particular friendship or enmity, or such other facts as would tend to show bias, but did not create a conclusive presumption of disqualification. In such cases, if the court had reason to think that bias or prejudice in fact existed to such an extent that the juror could not give the parties a fair trial, the juror would be held disqualified; but, while this thus lay in the...