Schultz v. Gilbert

• Decision Date: 13 March 1939
• Docket Number: Gen. No. 11.
• Citation: 300 Ill.App. 417,20 N.E.2d 884
• Parties: SCHULTZ ET AL. v. GILBERT.
• Court: United States Appellate Court of Illinois

300 Ill.App. 417

20 N.E.2d 884

SCHULTZ ET AL.

v.GILBERT.

Gen. No. 11.

Appellate Court of Illinois, Fourth District.

March 13, 1939.

Appeal from Circuit Court, Pulaski County; H. A. Spann, Judge.

Action by D. N. Schultz and others against Harry L. Gilbert, doing business under the style and firm name of Gilbert Truck Lines, to recover for injuries sustained in a collision between an automobile in which plaintiffs were riding and defendant's truck. Judgment for five of the eight plaintiffs, and defendant appeals.

Reversed and remanded. Joe Crain, of Mound City, and C. S. Miller, of Cairo, for appellant.

Jos. O'Sullivan, of Mound City, J. Kelly Smith, of Mounds, and Asa J. Wilbourn, of Cairo, for appellees.

STONE, Justice.

In this case plaintiffs, eight in number, joined their separate complaints in one action against the defendant, charging him with the negligence of his servant in operating his truck so as to injure the plaintiffs. The collision which brought about the injuries occurred on Bond Issue Route No. 2 in Pulaski County, Illinois. The suit was brought in the Circuit Court of Pulaski County.

The facts are not particularly material here, as this case calls for a construction of Section 66 of the Practice Act, Ill.Rev.Stat.1937, c. 110, § 190, which is as follows: “In all civil actions each party shall be entitled to challenge five jurors without showing cause for such challenges. Where there is more than one plaintiff or more than one defendant, the judge shall allow additional challenges not to exceed three in number to each additional plaintiff or defendant without showing cause.”

On the examination of the jurors, a juror by the name of Raymond Redcloud was tendered by the plaintiffs to the defendant and on his examination stated that he had been employed by the plaintiff, Alfred Shumaker, and that his employment would cause him to lean towards the side of Alfred Shumaker; that he would be biased and prejudiced in the trial of the cause. He was challenged for cause and the Court examined him and after having explained that it was his sworn duty to disregard any feeling of prejudice and try the case upon the law and the evidence, asked the juror if he would do that, and the juror said he would, whereupon the challenge was overruled. Further examination was had in the presence of the reporter wherein the same evidence was repeated and he again admitted his prejudice, and stated that it would take more evidence for him to return a verdict against Shumaker than it would for him, and that the way the most evidence was, was the way he felt he should go. The challenge for cause was renewed and denied and the defendant was obliged to exhaust his peremptory challenges.

In this case the defendant was not a resident of the County and the plaintiffs were all residents of the County and were known to nearly every one of the jurors. The plaintiffs exhausted their five challenges and were permitted additional challenges by the Court, under the Court's interpretation of Section 66 of the Practice Act. These were allowed without their being assigned to any particular plaintiff. The defendant having used five peremptory challenges also challenged the juror, Lewis Brown, a personal acquaintance of most of the plaintiffs, without assigning cause. This challenge was denied by the Court under the holding that additional challenges were not allowed to each side, but only for each additional plaintiff.

The jury thus impaneled found the defendant guilty as to five of the plaintiffs and assessed various damages for each of them. It found the defendant not guilty as to the other three plaintiffs. All were damaged in the same collision and all were subject to the same set of facts as shown by the proof.

The Practice Act provides that the Act shall be liberally construed to the end that justice may be done according to the substantive rights of the parties. Ill.Rev.Stat.1937, c. 110, § 128. We are of the opinion that the word “to” in the foregoing section of the Act refers to the ratio and that the Legislature did not intend that where there are eight plaintiffs they should be entitled to twenty]one extra peremptory challenges and that the defendant would be entitled to none. On the other hand, we are of the opinion that that section insofar as it provides the extra peremptory challenges for one set of parties, because of numbers, also means that the other set, either singly or in numbers, are entitled to the same ratio of peremptory challenges. An analogous case is found in the procedure in criminal trials where each defendant, however many there are, is entitled to the maximum of peremptory challenges. The State, on the other hand, is entitled to an equal number of peremptory challenges that is awarded to all of the defendants. This is done in the interest of justice and the wisdom of it is easily seen. Imagine a case where there are one hundred defendants, each entitled to ten peremptory challenges; the aggregate is a thousand; then suppose the people are entitled to but ten. The defendants would thereby be enabled almost to select the jury to their liking to the great detriment of the People represented on the other side. We see no difference in principle. In this case, if there had been one hundred plaintiffs, under the ruling of the court they would have been entitled to three hundred and two peremptory challenges as against five for the defendant. The injustice is obvious. This case presents almost that exaggerated state of facts. Here is a defendant in a strange county where he knew no one; the plaintiffs were all residents of Pulaski County. He was allowed five peremptory challenges and the other side might have been allowed twenty]six under the trial court's construction of the Statute. In this case the injustice appears. The defendant was forced to exhaust his last peremptory to get rid of a venireman who had disqualified himself. This particular venireman was asked if he had a prejudice and he said that he had, and he gave the reasons why. Upon being asked the stock question if notwithstanding his prejudice he could try the case fairly and impartially according to the law and the evidence, he answered that he could. A reporter was brought in and the same procedure was gone through and the same state of mind exhibited by the venireman. The court allowed him to sit. This was within the sound discretion of the court, and the court was probably in the best position to judge, but it is apparent that the defendant did not want this venireman and he was forced either to take him or to exhaust his last peremptory challenge, which in the last instance he did. Then when he undertook to exercise a peremptory...