McMahon v. Carlisle-Pennell Lumber Co.

• Decision Date: 09 June 1925
• Docket Number: 19086.
• Citation: 236 P. 797,135 Wash. 27
• Parties: McMAHON et ux. v. CARLISLE-PENNELL LUMBER CO.
• Court: Washington Supreme Court

236 P. 797

135 Wash. 27

McMAHON et ux. v. CARLISLE-PENNELL LUMBER CO.

No. 19086.

Supreme Court of Washington

June 9, 1925

Department 1.

Appeal from Superior Court, Lewis County; Reynolds, Judge.

Action by Michael McMahon and another against the Carlisle-Pennell Lumber Company. Judgment for defendant, and plaintiffs appeal. Reversed, with instructions to grant new trial.

Burkey & Burkey and J. F. O'Brien, all of Tacoma, and H. E. Donohoe, of Chehalis, for appellants.

Theodore B. Bruener, of Aberdeen, and Dysart & Ellsbury, of Centralia for respondent.

ASKREN J.

This is an appeal from the judgment of the trial court entered on the verdict of a jury in favor of the defendant in the second trial of an action for personal injuries. The first resulted in a verdict for plaintiff, and the court ordered a new trial when plaintiff refused to consent to a reduction in the amount thereof.

The main question presented upon this appeal is whether prejudicial error was committed by the trial court in the selection of the jury.

It appears that the juror Burchett was called to the box, and upon his voir dire examination stated that he was employed by the respondent, whereupon he was challenged by appellant upon the ground of implied bias. The court denied the challenge to which exception was taken. Thereafter appellant peremptorily challenged the juror, and before securing the jury had exhausted all three of the peremptory challenges allowed him by law. Rem. Comp. Stats. § 330, is as follows:

'A challenge for implied bias may be taken for any or all of the following causes, and not otherwise: * * * (2) Standing in relation of * * * master and servant, or landlord and tenant, to the adverse party.'

It is clear from a reading of the statute that the challenge should have been sustained and that to refuse to do so was error.

In State v. Rutten, 13 Wash. 203, 43 P. 30, we held that the constitutional rights of a defendant were invaded when the defendant was required to exhaust his peremptory challenges on jurors who should have been dismissed for cause.

In State v. Stentz, 30 Wash. 134, 70 P. 241, 63 L. R A. 807, this doctrine was reaffirmed in the following language:

'A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be considered on appeal as prejudicial where the accused has been compelled subsequently to exhaust all his peremptory challenges before the final selection of the jury.'

We have also inferentially held to the same effect in State v. Moody, 7 Wash. 395, 35 P. 132, in the following language:

'The next error alleged grows out of the refusal of the court to allow a challenge for cause to one Charles Nelson, who was offered as a juryman, but the action of the court in regard thereto, if error, was without prejudice, for the reason that said Nelson did not sit as a juror in the case, as he was peremptorily challenged by the appellant, who was in no manner injured by having to exercise his right in that regard as he did not exhaust all of his peremptory challenges during the empaneling of the jury.'

This rule has been consistently followed in our decisions, the latest expression on this question being State v. Muller, 114 Wash. 660, 195 P. 1047:

'It is next urged that the court erred in denying appellant's challenge to the juror Coupe. While we might believe from reading the examination of this juror that the challenge for cause should have been sustained, in the record it nowhere appears that the juror was not subsequently removed by appellant's peremptory challenge, or that the appellant exhausted all his peremptory challenges. Error is not to be presumed, and it not appearing that the denial of the challenge for cause resulted in any prejudice to the appellant, the point must be resolved

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