Ross v. Grand Pants Co.

• Decision Date: 21 March 1912
• Citation: 145 S.W. 410
• Parties: ROSS v. GRAND PANTS CO.
• Court: Missouri Supreme Court

145 S.W. 410

ROSS v. GRAND PANTS CO.

Supreme Court of Missouri, Division No. 2.

March 21, 1912.

1. APPEAL AND ERROR (§ 259)—EXCEPTIONS—SWEARING JURORS.

An inadvertent omission to swear one of the jurors cannot be reviewed, in the absence of an exception at the time of the administration of the oath to the jury.

2. APPEAL AND ERROR (§ 279)—EXCEPTIONS—EXCUSE FOR OMISSION.

The failure to except to an inadvertent omission to administer an oath to one of the jurors cannot be excused so as to obtain a review on appeal by showing that counsel did not know of the omission.

3. COURTS (§ 231)—MISSOURI SUPREME COURT —CONSTITUTIONAL QUESTION.

To raise a constitutional question for the Supreme Court, an exception must be presented to the trial court at the proper time, and hence, the failure of the trial court to administer an oath to one of the jurors not having been excepted to, the question whether that was a denial of the constitutional right to trial by jury is not raised so as to confer jurisdiction of the appeal upon the Supreme Court.

4. JURY (§ 148)—TRIAL BY JURY—IMPANELING—OATH—EVIDENCE.

In an action tried by a jury where it was objected that one of the jurors was not sworn, evidence held sufficient to warrant a finding that the oath had been administered.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Myron E. Ross against the Grand Pants Company. From a judgment for plaintiff, defendant appeals. Cause transferred to the Kansas City Court of Appeals.

Gerson B. Silverman, for appellant. Joseph P. Fontron, for respondent.

BLAIR, C.

This court is without jurisdiction of this case unless the construction of the Constitution of the state is involved. On the part of appellant it is asserted the provision of our Constitution relating to trial by jury was drawn in question in the trial court in this wise: At the close of the evidence in the case, the court adjourned until the following morning, and, upon its reconvening, appellant's counsel stated that after adjournment on the previous day he had learned one of the 12 jurors had not been sworn to try the case, wherefore counsel moved the court "to discharge the entire jury and impanel a new jury." Evidence pro and con was heard upon the question of fact thus raised.

Appellant's counsel was at the counsel table when the jury was impaneled, and testified he was cognizant of the fact the juror in question was at first excused, and then recalled, but had no recollection whether he was sworn. It appeared that the official calling the 12 selected to try the case inadvertently omitted the juror Lockwood, and then "in the fraction of a minute" discovered the error, and recalled him to the jury box. A young attorney, associated in the trial with appellant's present counsel, engaged in looking after the witnesses and offering occasional suggestions though not employed by appellant, and one of appellant's employés, testified they observed the omission to swear Lockwood at the time it occurred, but did not mention it, not knowing it was of importance. The juror and the deputy who called the jury list preparatory to swearing the 12 gave testimony tending to show all 12 were duly sworn. The court and respondent's counsel had no distinct recollection on the subject. The court made no definite finding whether the juror was or was not sworn, but stated it was under "the impression from the testimony that the weight of it tends to show the juror was not sworn," and then said counsel had waived the point by not raising it earlier; the whole transaction having occurred in counsel's presence. The court then heard the testimony of appellant's counsel, and thereupon overruled the motion, giving at that time no reason for its ruling.

We think this cause must be transferred. All absolute denial of a jury trial in a case in which it is demandable will not be reviewed, unless exception is taken and saved (Ward v. Quinlivin, 65 Mo. 453; Klotz v. Perteet, 101 Mo. 213, 13 S. W. 955; Estes v. Fry, 94 Mo., loc. cit. 271, 6 S. W. 660; Smith v. Baer, 166 Mo., loc. cit. 401, 66 S. W. 166; Callahan v. Shotwell, Adm'r, 60 Mo., loc. cit. 401; Vining v. Ins. Co., 89 Mo. App. 319), and for a stronger reason an inadvertent omission to comply with some formality in impaneling one or all of the jurymen must be held unreviewable, unless excepted to at the proper time. Specifically that the omission to swear any one or all of the jury is but a matter of exception is, in our opinion, well established. The Supreme Court of Vermont (Scott v. Moore, 41 Vt., loc. cit. 210, 98 Am. Dec. 581), considering the identical question presented here, under a constitutional provision similar to ours, held: "The fact that the juror was not sworn was an irregularity the party might waive, as necessarily it could not affect the fairness of the trial. The juror may have acted as conscientiously and as impartially in the discharge of his duty as a juror as he would have done under oath. It is not shown that he did not." In the case...