Mississippi Public Service Co. v. Colder

• Decision Date: 26 September 1938
• Docket Number: 33308
• Citation: 183 So. 379,183 Miss. 271
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI PUBLIC SERVICE Co. et al. v. COLDER

183 So. 379

183 Miss. 271

MISSISSIPPI PUBLIC SERVICE Co. et al. v. COLDER

No. 33308

Supreme Court of Mississippi

September 26, 1938

Division B

1 JURY.

That juror was a second cousin to one of the defendants was prima facie prejudicial.

2 JURY.

A juror related to one of the parties should not sit in the case unless the relationship is fully disclosed and the parties in the suit voluntarily accept the juror.

3. NEW TRIAL.

The setting aside of verdict was not error where one of jurors was a second cousin to one of the defendants and such juror remained silent when the court asked the jurors being impaneled if any of them were related to any of the parties and neither the plaintiff nor his attorney were aware of such relationship at the time the jury was impaneled.

4 TRIAL.

In action for injuries sustained when truck in which plaintiff was riding collided with approaching truck on bridge modification of instructions that plaintiff had duty of keeping on the proper side of the bridge and that verdict should be returned for defendant if injury resulted solely from the failure of the plaintiff to stay on the proper side of bridge, by interlining "provided the bridge was not in fact a one way bridge" and "unless the bridge was a one way bridge," was proper, where the two trucks were so nearly the entire width of the bridge that it was highly dangerous for them to pass on the bridge, and the bridge was regarded as a one-way bridge by those familiar with it.

5. APPEAL AND ERROR.

A plaintiff is precluded from questioning the correctness of instructions accepted and used by him.

6. APPEAL AND ERROR.

A person desiring to object to modification of instruction requested by him and to insist that the instruction as originally drawn was correct should have the instruction so marked, and that such person refused to use it.

HON. THOS. H. JOHNSTON, Judge.

APPEAL from the circuit court of Monroe county HON. THOS. H. JOHNSTON, Judge.

Suit by Cleveland Collier against the Mississippi Public Service Company and others for personal injuries sustained in a collision between two trucks. From the judgment, the defendant appeals. Affirmed.

Affirmed.

Thomas J. Tubb, of West Point, for appellant, Mississippi Public Service Co.

There is no statute in this state which provides that any degree of kinship between a juror and a party litigant makes the juror incompetent. There are very few cases in this jurisdiction upon the question.

In the case of Davis v. Searcy, 79 Miss. 292, 30 So. 823, this court passed upon the relationship of a juror to one of the parties as it affects the verdict. It held that relatives of Searcy were incompetent as jurors and also held that an erroneous instruction had been given and that the verdict of the jury was not an absolute verdict as required by the statute. On all three of these grounds, the court reversed the case. There is very little in this case that would be of help in the question here presented except the fact that a juror related to one of the parties litigant is an incompetent juror.

In the case of Brumfield v. State, 102 Miss. 610, 59 So. 849, one of the jurors was related by affinity to the prosecuting witness. The juror's wife according to the evidence was a double third cousin to the prosecuting witness. The juror and his wife were introduced. They testified that they were neither acquainted with nor aware of their relationship to the prosecuting witness. This court held: "Consequently the juror could not possibly have been influenced thereby," and affirmed the case.

Huggins v. State, 103 Miss. 227, 60 So. 209; 20 R. C. L. 238, pars. 24 and 25.

The burden of proof resting upon the party who seeks a new trial is not satisfied by merely establishing the existence of the facts upon which his application is based; but he must also show that the circumstance of which he complains operated to his prejudice by producing or aiding to produce a verdict less favorable to him than might otherwise have reasonably been rendered.

46 C. J., page 347, sec. 356, page 377, sec. 417, and page 378, sec. 418; Huber v. Lane, 45 Miss. 608.

The authorities all hold that the movant for a new trial must prove not only that his counsel did not know of the facts making the juror incompetent but that the party or litigant himself must show that he did not know such facts. The record on the hearing of the motion for a new trial does not disclose that the plaintiff, Collier, proved or offered any evidence to prove that he did not know that English and Hood were related.

We concede that courts universally hold that close relationship to one of the parties litigant disqualifies a juror, but we contend here that where the juror has been accepted although he ignorantly or unintentionally failed to disclose his relationship to one of the parties litigant but tried the case which resulted in a verdict against his kinsman and where the court on motion for a new trial has unequivocally held that the damages awarded by the verdict of the jury were not inadequate under the proof, then the movant for a new trial cannot show, and so far as this record here goes, has not shown, any harm, hurt, injury or prejudice to this cause because of the juror English having sat upon the jury.

Motion for a new trial in this case by the plaintiff does not show on its face that the plaintiff was in any manner injured or prejudiced by the relationship between the juror, English, and the defendant Hood, and he offered no proof upon the hearing of the motion to establish an injury or prejudice to his cause by virtue of such relationship.

We, therefore, submit that on the showing made by the plaintiff upon a hearing of the motion for a new trial, the motion should have been overruled and that the lower court erred in sustaining said motion and that the lower court erred in overruling appellant's motion upon the last trial to reinstate the judgment entered at the March, 1937, term of court.

The testimony of juror, English, and juror, Kennedy, is in the record and not one word of the testimony offered by each of these jurors goes toward the impeachment of the verdict of the jury but all their testimony goes to sustain the verdict and they were offered as witnesses for that purpose.

46 C. J., page 349, sec. 369, and page 364, sec. 386.

Leftwich & Tubb, of Aberdeen, for appellant, Ray Hood.

It was error in the trial court to sustain appellee's motion for a new trial and in setting aside the judgment entered at the March term, 1937, The court will observe that this motion was based on two separate and distinct grounds: the first was that the judgment of $ 750 was inadequate in amount to the extent that it manifested passion and prejudice on the part of the jury. The second was because of an alleged relationship between Olen English, one of the jurors, and the defendant Ray Hood, and that this relationship was not known to the plaintiff or his counsel at the time the juror was accepted. The motion does not allege that this relationship resulted in any prejudice or injury to the plaintiff.

There is no statute in Mississippi which requires that a juror shall not be related to any of the parties. Chapter 40, Code of 1930, on the subject of Juries, contains all the statutory provisions with reference to the selection and impanelling of juries. These laws are merely directory, but they do provide, among other things, that when a jury is once impaneled and has rendered its verdict, then the lack of qualifications on the part of one or more of the jurors shall not vitiate the verdict.

Sections 2050, 2029, Code of 1930.

The motion in this case does not show on its face that the plaintiff was in any manner injured or prejudiced by the alleged relationship between the juror Olen English and the defendant Ray Hood, and unless the plaintiff was so injured or prejudiced for this reason, then the motion ought to be overruled. The motion ought to go further and allege this injury and prejudice and the proof must also show that the plaintiff was injured and prejudiced by reason of the juror having acted in the case.

46 C. J., sections 355, 356, 401, 402, 403, 417, 418.

Sections 417 and 418 of 46 Corpus Juris, requiring the movant or the complaining party to show prejudice by clear and convincing proof, is supported by many of the courts of the nation.

Haber v. Lane, 45 Miss. 608; Huggins v. State, 103 Miss. 227, 60 So. 209; Brumfield v. State, 102 Miss. 610, 59 So. 849; Long v. State, 163 Miss. 535, 141 So. 591; Gardner v. State, 145 Miss. 215, 110 So. 589; State of the West Virginia v. Harris, 50 L.R.A. (N.S.) 933; Owen v. State, 177 Miss. 488, 171 So. 345.

English did not recognize any relation to the defendant Hood. He was not conscious of any relationship; and, therefore, this alleged relation did not and would not create any bias in him in favor of the defendant Hood.

The testimony of the juror English and also that of juror Kennedy was competent.

46 C. J. 349, sec. 370; Gleason v. Commonwealth, 145 Ky. 128, 140 S.W. 63, Ann. Cas. 1913B 757; 4 Wigmore on Evidence, page 3297, sec. 2354 (4).

We respectfully submit that the proceedings on this motion for a new trial do not disclose that the plaintiff was in any manner prejudiced by his acceptance of the juror Olen English.

The court committed error in overruling appellant's motion to reinstate the judgment rendered at the March term, 1937.

Chicago, St. Louis & New Orleans 15. Co. v. Doyle, 60 Miss. 977; Ennis v. Y. & M. V. 15. Co., 118 Miss. 509, 79 So. 73; Edmunds v. Mister, 58 Miss. 765; Evans v. Wenger, 139 Miss. 53, 103 So. 481.

The trial court committed error in giving charge number 7 for the plaintiff. The legislature in this state in Chapter...