Redwine v. Fitzhugh

• Decision Date: 12 August 1958
• Docket Number: No. 2832,2832
• Citation: 78 Wyo. 407,72 A.L.R.2d 664,329 P.2d 257
• Parties: , 72 A.L.R.2d 664 Laura REDWINE, Administratrix of the Estate of William R. Shelton, Deceased, and Laura Redwine, Individually, Appellant (Plaintiffs below), v. Gordon FITZHUGH and James Fitzhugh, Appellee (Defendants below).
• Court: Wyoming Supreme Court

Page 257

329 P.2d 257

78 Wyo. 407, 72 A.L.R.2d 664

Laura REDWINE, Administratrix of the Estate of William R. Shelton, Deceased, and Laura Redwine, Individually, Appellant (Plaintiffs below), v. Gordon FITZHUGH and James Fitzhugh, Appellee (Defendants below).

No. 2832.

Supreme Court of Wyoming.

Aug. 12, 1958.

Rehearing Denied Oct. 7, 1958.

See 330 P.2d 112.

A. Joseph Williams and Glenn A. Williams, Cheyenne, for appellant.

Maurer & Garst, Douglas, for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice HARNSBERGER delivered the opinion of this court.

Plaintiffs sued in trespass and a jury awarded plaintiff Laura Redwine $1,000 damages against defendant Gordon Fitzhugh, but it also awarded defendant Gordon Fitzhugh $2,351 upon his cross-petition against plaintiff Laura Redwine as damages for her interference with his diversion dam and headgates with resulting loss or destruction of his crops. No appeal is taken from the $1,000 judgment in plaintiff's favor, but plaintiff appeals from the judgment adverse to her.

The case comes to us upon an Agreed Statement of Case On Appeal, under the provision of Rule 75 of our new Wyoming Rules of Civil Procedure. This shows the appellant seeks reversal of the judgment against her because: (1) The trial court overruled appellant's challenge for cause addressed to a juror who was a client of the law firm of which appellee's counsel was a member. This required appellant to use one of her peremptory challenges to remove that juror. Thereafter, when appellant had exhausted her peremptory challenges, another juror who was unsatisfactory to appellant, but against whom no cause for disqualification could be shown, was called and served as a juror in the case. (2) The cross-petition and the evidence adduced thereunder were based on an improper measure of damages. (3) The cross-petition insufficiently alleged a cause of action.

The particular facts relative to the challenged juror are: that he and his wife owned the majority of stock in a small corporation; the law firm of which the appellee's attorney was a member was employed by that corporation, although appellee's counsel in this case performed no service for the corporation; the corporation made its checks for legal services payable to the law firm in the firm name. It also appears that appellee's pleadings in this case were signed in the firm name as attorneys for the appellee's counsel. The other member of the law firm took no part in the preparation of this case. The agreed statement shows the lower court summarized the situation as follows:

'The Reporter will make the following notation in the record of this case: That upon the Voir dire, attorney for plaintiff in examining prospective juror Richard E. Fraidy, obtained a disclosure that the partner of the attorney for the defendant in this matter was the general attorney for the prospective juror.

'The juror upon examination by the court indicated that, in his opinion, such employment would not influence him in the decision of this matter.

'Attorney for plaintiff moved the court that such juror be excused for cause and the court refused to remove such juror for cause, to which moving the plaintiff requested and it is ordered that he have an exception.

'(Whereupon the jury was empaneled (sic).)

'The court will stand in recess for five minutes. If everyone will resume their present position at the end of that five minutes.

'(Whereupon at the hour of 9:53 o'clock a. m., recess was taken.)

'May the record show, with reference to the examination of juror Fraidy, that the plaintiff removed said juror on his first challenge and thereafter did exaust (sic) his three challenges and that the attorney for the plaintiff does not further desire to remove an additional juror as on pre-emptory (sic) challenge but cannot do so for the reason that his pre-emptory (sic) challenges have been exausted (sic) and that, in the opinion of the attorney for plaintiff, his rights in obtaining an impartial jury have been impaired by the previous refusal of the court to remove juror Fraidy for cause.'

Appellant reasons that the court's adverse ruling upon her challenge of the juror for cause amounted to an abuse of discretion and invites our attention to previous holdings of this court which point out that a legal discretion is one '* * * to be exercised in conformity with the spirit of the law and in a manner to subserve and not to defeat the end of substantial justice, * * *', Lake v. Lake, 63 Wyo. 375, 399, 182 P.2d 824, 833, and that

"The term 'abuse of discretion' does not mean any reflection upon the presiding judge, and does not carry with it an implication of conduct deserving censure, but is strictly a legal term indicating that the appellate court is of the opinion that under the circumstances the trial judge committed error of law in the exercise of his discretion". Puterman v. Puterman, 66 Wyo. 89, 107, 205 P.2d 815, 822.

Counsel agree that our Wyoming Compiled Statutes, 1945, § 3-2405 and § 3-2406, which specify certain causes for challenge, fail to include the relation of attorney and client between the prospective juror and one of counsel in the pending case as cause which would disqualify the juror. Notwithstanding that omission, appellant says a juror may always be challenged for cause where such a relation exists and that the challenge should disqualify the juror if the guarantee of a fair and impartial jury is to be observed. Counsel also remind us this is a right assured by constitution, both state and federal (see generally 31 Am.Jur., 1958, Jury, § 158, p. 139, and 50 C.J.S. Juries § 226, p. 967 et seq.) and counsel cite us Johnson v. State, 1 Okl.Cr. 321, 97 P. 1059, 18 Ann.Cas. 300, and State v. Russell, 73 Mont. 240, 235 P. 712, where such holdings were expressly made.

The appellee replies that in the instant matter the relation was not in fact between the juror and one of opposing counsel in the case, but only between a corporation in which the juror, together with his wife, owned a majority of the corporation's stock and a partner of the active counsel in this case. Appellee also claims the agreed statement is not positive to the effect that the relation of attorney and client between the corporation and the law firm existed at the time of trial, and finally appellee says the fact that the juror was unbiased and otherwise qualified was determined favorably to the juror by the trial court, and that the ruling should not be disturbed because of the trial court's superior opportunity to observe the juror's demeanor and his candor.

The issues thus presented suggest several questions, namely: (1) Does an attorney and client relation between a prospective juror and counsel in a case disqualify the juror even though our statutes do not expressly so provide? (2) Does a husband and wife ownership of control in a corporation which employs a firm of attorneys suffice to constitute the relation of attorney and client between a member of the law firm and the juror-husband? (3) Does employment of a law firm by a corporation under the named circumstances carry with it the relation of attorney and client between the juror-husband and the appellee's attorney who was a member of the employed law firm, but who had not personally performed any service for the corporation, although the corporation's payment for services performed for it by the other law partner was made to the law firm and when appellee's pleadings in the instant case were signed in the name of the law firm by the attorney conducting appellee's case? (4) Does the agreed statement sufficiently indicate the alleged relation existed at the time of trial? (5) Was the ruling of the court on the challenge within the sound discretion of the court, an abuse of discretion, or erroneous, as a matter of law?

However, because of our conclusions with respect to the first of these questions, it will be unnecessary to discuss the others.

It is fundamental that every litigant is entitled to have his rights fairly and impartially determined, and it is the duty of a trial court to see that a jury of competent, fair and impartial persons is impaneled. 50 C.J.S. Juries § 208a, pp. 944-945. Statutes which enumerate certain causes as disqualifying a prospective juror are not exclusive of other causes which may imply disqualifying bias or prejudice of the prospective juror, and such statutes do not deprive courts of their inherent right to declare that such other causes also require dismissal of a prospective juror in order to ensure that litigants will have a fair and impartial trial. See Klinck v. State, 203 Ind. 647, 179 N.E. 549, 79 A.L.R. 272; Johnson v. State, supra; State v. Russell, supra; 31 Am.Jur., 1958, Jury, § 158, p. 139; 50 C.J.S. Juries § 208b, pp. 945-947. But to agree that courts have that right does not entirely dispose of the question before us. We must go further and decide whether the additional cause contended for in this case raised a conclusive presumption against the fitness of the prospective juror or if it only raised a rebuttable presumption of unfitness. If the presumption is conclusive, then like statutory causes, the relation of attorney and client between juror and counsel disqualifies the juror as a matter of law. If the presumption is rebuttable, the matter rested in the properly exercised sound discretion of the trial court and, as in all other matters where discretion is exercised, this court will not interfere unless it affirmatively appears the decision of the court was without substantial evidence to support it or that it was in abuse of discretion or tinged with fraud. 31 Am.Jur., 1958, Jury, § 205, pp. 173-175, notes that cases on the subject are conflicting but says that for the most part the conflicts arise from statutory differences. However, the discussion does not cover the exact point of the conclusive or rebuttable character of the relation as being...