Sherman v. Southern Pac. Co.
| Decision Date | 01 November 1910 |
| Docket Number | 1,820. |
| Citation | 111 P. 416,33 Nev. 385 |
| Parties | SHERMAN v. SOUTHERN PAC. CO. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; John T. Orr, Judge.
Action by C. E. Sherman against the Southern Pacific Company. Judgment for plaintiff. Defendant appeals. Affirmed.
Lewers & Henderson and Frank Thunen, for appellant.
Cheney Massey & Price and Smith & Fink, for respondent.
This action was instituted on the 28th day of September, 1907, in the district court of the Second judicial district of the state of Nevada in and for Washoe county, to recover from the defendant the sum of $20,000 for personal injuries sustained by plaintiff by reason of the derailment of one of defendant's trains near Deeth, Nev., on which the plaintiff was traveling en route from Ogden, Utah, to Tonopah, Nev., on the 22d day of January, 1907. It appears from the transcript that the respondent, a miner by occupation, 40 years of age, and in perfect health, purchased a railroad ticket from the Southern Pacific Company in Ogden Utah, to Tonopah, Nev. When about a mile east of Deeth, in the state of Nevada, the seven cars behind the express left the track. Respondent was in the smoker, which, owing to the derailment, was thrown over an embankment, turning on its side, and from the wreck respondent emerged with injuries which, as alleged, crippled him for life. On account of these injuries sustained by reason of the wreck, and the suffering respondent was forced to undergo in a temperature registering 20 degrees below zero at the time of the derailment, and other physical sufferings endured by respondent by reason of the accident, upon the case being tried before the court, sitting with a jury, the respondent was awarded a verdict in the sum of $15,000. The defendant interposed a motion in the trial court to set aside the verdict and for a new trial upon the grounds: First, excessive damages appearing to have been given under the influence of passion and prejudice; second, insufficiency of evidence to justify the verdict; third, that said verdict was against law; fourth, errors in law occurring at the trial and excepted to by the defendant; fifth, misconduct of the jury by which defendant was prevented from having a fair trial. The motion was denied, and the defendant prosecutes this appeal from the final judgment and order.
Aside from the specifications of insufficiency of the evidence to sustain the verdict, there are 35 separate assignments of error in the proceedings of the trial court. We will consider those assignments of error, which are urged as reversible errors, in the order in which they are presented.
In the selection of the jury, appellant assigns that the court erred in sustaining the challenges of plaintiff to the jurors, H. H. Clark and S. H. Wheeler, upon the ground that the relation of landlord and tenant existed between defendant and said jurors. It is maintained by counsel for appellant that nowhere in our statute which sets forth what circumstances shall be sufficient to disqualify a juror otherwise competent from sitting in any particular case is there a ground of challenge because of the relationship of landlord and tenant, which makes such relation a disqualification. The third subdivision of section 164 of the civil practice act (Comp. Laws, § 3259) of Nevada, which enumerates the grounds for which challenges for cause may be taken, reads as follows: We believe under this section, where it appears that the relation of landlord and tenant exists, there is sufficient statutory authorization for the court to grant the challenge. All parties to an action should be entitled to a fair, unprejudiced jury, and it requires no stretch of imagination to understand that under some circumstances a tenant may for business interests be influenced or embarrassed in his verdict. "United in business," as expressed in the statute, should be construed to mean any business relation which would, within the sound discretion of the trial court, indicate that the juror might be interested, biased, influenced, or embarrassed in his verdict. The rule, we believe, is stated clearly in Cyc. as follows: 24 Cyc. p. 276. At common law, a juror standing in the relation of landlord and tenant was disqualified. "A tenant holding land from year to year as a cropper is disqualified as a juror in a case where his landlord is a party." Pipher v. Lodge, 16 Serg. & R. (Pa.) 214; 5 Bacon's Abridgements, 352; Coke's Littleton, 158 A and 157 B.
The great trend of modern authority is to exclude from juries all persons who by reason of their business or social relations, past or present, with either of the parties, could be suspected of possible bias, even though the particular status or relation is not enumerated in the various state statutes and codes, most, if not all, of which, like the statutes of Nevada, are merely declaratory. Thus the Kentucky Court of Appeals has held that a stockholder in a corporation which owns stock in another corporation is disqualified to act as a juror in an action against the latter corporation. McLaughlin v. L. El. L. Co., 100 Ky. 173, 37 S.W. 851, 34 L. R. A. 812. The Supreme Court of Florida held (1906) that in the trial of a baggagemaster for embezzlement of the property of a passenger it was the better practice to exclude from the juries employés of the same company as the defendant. Hopkins v. State, 52 Fla. 39, 42 So. 53. The Supreme Court of Pennsylvania has decided that in an ejectment suit by the heirs of an insolvent debtor the executor of a deceased creditor was not a competent juror. Smull v. Jones, 6 Watts & S. (Pa.) 122. The Supreme Courts of Nebraska and Colorado have held that a shipper over the railroad of one of the parties who has received favors in the past and hopes for others in the future is disqualified as a juror. Railway Co. v. Cook, 37 Neb. 435, 55 N.W. 943; Denver, etc., Ry. v. Driscoll, 12 Colo. 520, 21 P. 708, 13 Am. St. Rep. 243.
The Supreme Court of Iowa has held that the court may on the ground of probable prejudice sustain a challenge to a juror, although the relationship is not within the degree prescribed by statute as rendering the juror incompetent. Wisehart v. Dietz, 67 Iowa, 121, 24 N.W. 752. The Supreme Courts of Colorado and Louisiana have held that where there is a family connection reasonably calculated to prevent the juror from being impartial, although not amounting to actual relationship, the juror is disqualified. Buddee v. Spangler, 12 Colo. 216, 20 P. 760; State v. Kellogg, 104 La. 580, 29 So. 285.
The identical point urged by counsel for appellant in this assignment of error has been decided by the Supreme Courts of Pennsylvania and of New York adversely to appellant's contention. "That the juror is a tenant of a party is in itself a sufficient ground of challenge." Harrisburg Bank v. Forster, 8 Watts, 304; Hathaway v. Helmer, 25 Barb. 29. But even where the action of the trial court is open to criticism, it does not amount to reversible error. It has been held many times that a party has no right to any particular juror, but only to a trial by an impartial jury. State v. Hamilton, 35 La. Ann. 1043; State v. Kluseman, 53 Minn. 541, 55 N.W. 741. If the trial court errs in sustaining a challenge for cause, the error is without prejudice if an impartial and unobjectionable jury is subsequently obtained to try the case. State v. Carries, 39 La. Ann. 931, 3 So. 56; State v. Creech, 38 La. Ann. 480; State v. Hamilton, 35 La. Ann. 1043, supra; State v. Barnes, 34 La. Ann. 395; State v. Kluseman, 53 Minn. 541, 55 N.W. 741; Omaha, etc., R. Co. v. Cook, 37 Neb. 435, 55 N.W. 943; Armsby v. People, 2 Thomp. & C. 157; State v. Harding, 16 Or. 493, 19 P. 449; State v. Ching Ling, 16 Or. 419, 18 P. 844; Northern Pac. R. Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755, affirming 3 Dak. 38, 13 N.W. 349; Southern Pacific Co. v. Rauh, 49 F. 696, 1 C. C. A. 416. In Southern Pacific Co. v. Rauh, decided by the Circuit Court of Appeals for the Ninth Circuit, it was held: "Rejection by the court of a challenged juror for insufficient reasons is no ground for exception when it appears that the remainder of the jury was made up of persons to whom the excepting party made no objections." In Northern Pacific Railway Company v. Herbert it was held: "A trial by an impartial jury being all that a party can demand, the allowance of a challenge for cause, even if the cause was insufficient, is no ground of complaint where a competent and unbiased jury was finally selected." Northern Pacific Ry. Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755.
In the case at bar, it does not appear that there were any objectionable persons to appellant upon the jury as finally constituted. In the recent case of Murphy v. Southern Pacific Company, 32 Nev. --, 101 P. 322, in passing upon the question of a juror challenged for cause, who was formerly in the employ of the defendant corporation for 15 years, though not in the employ of the company at the time of the trial, and otherwise qualified as a...
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