Shulinsky v. Boston & M. R. R

• Decision Date: 07 June 1927
• Citation: 139 A. 189
• Parties: SHULINSKY v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

139 A. 189

SHULINSKY

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Sullivan.

June 7, 1927.

On Rehearing Oct. 4, 1927.

Exceptions from Superior Court, Sullivan County; Burque, Judge.

Action by Nathan Shulinsky against the Boston & Maine Railroad. Verdict for plaintiff. Defendant's motion to set verdict aside was denied, and it excepts. New trial.

Case, for negligence. Trial by jury and verdict for plaintiff. At a trial at the term of another case between the parties, defendant's counsel, having information that one of the jurors had had some dealings with the plaintiff, called it to the attention of the court and plaintiff's counsel, and the latter was asked to inquire of his client if the information was true. Report was made that the juror and the plaintiff had no business relations. When the jury in this case was impaneled, the juror, on being asked whether he had such business relations or was a creditor or debtor of the plaintiff, remained silent in reliance on the assurance of plaintiff's counsel, the defendant did not challenge the juror. It later appeared that the juror had signed a number of notes with the plaintiff on which the latter borrowed money and that a note of $200 was outstanding at the time of the trial. A motion to set aside the verdict because the juror was disqualified by reason "of his financial relation to the plaintiff and his business" was denied on a ruling that there was no disqualification either under the statute or in fact, and the defendant excepted.

Barton & Shulins, of Newport, for plaintiff.

Demond, Woodworth, Sulloway & Rogers, of Concord, for defendant.

ALLEN, J. It is not necessary to consider whether the statutory requirement that jurors shall be indifferent (P. L. c. 321, § 31) could be found to be complied with. By P. L. c. 339, § 19, each party in a civil cause may take three peremptory challenges. If this right of challenge is lost or impaired, the statutory conditions and terms for setting up an authorized jury are not met. "The right to challenge a given number of jurors without showing cause is one of the most important of the rights secured to the accused. * * * Any system for the empanelling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right must be condemned; and therefore he cannot be compelled to make a peremptory challenge until he has been brought face to face, in the presence of the court, with each proposed juror, and an opportunity given for such inspection and examination of him as is required for the due administration of justice." Pointer v. United States, 151 U. S. 396, 408, 409, 14 S. Ct. 410, 414 (38 L. Ed. 208). While at common law there was no right of peremptory challenge in civil trials, yet when the right is given by statute, it is to have equal force and be of equal benefit. The statute (P. L. c. 368, §§ 11, 12) which gives in criminal cases, those of a capital nature excepted, no more challenges than in a civil cause, sufficiently demonstrates the legislative purpose of a like basis and treatment in both civil and criminal trials.

Described as a right to reject rather than select jurors (State v. Doolittle, 58 N. H. 92), the peremptory challenge is generally regarded as hardly less important in securing a fair trial than the court's challenge. It is material in its tendency to give the parties assurance of the fairness of the trial in a valuable and effective way. The terms of statutes relating to it are construed as substantial rather than technical. People v. McQuade. 110 N. Y. 284, 18 N. E. 156,1 L. R. A. 273. While "The mode of selection and the right of challenge seem to be 'mere rules suggested by experience and prescribed by law, to be observed as most likely to secure the greatest amount of intelligence, integrity and impartiality to the trial by jury. * * *'" (State v. Wilson, 48 N. H. 398, 399), yet such rules, as aiding to secure an impartial, and to avoid a partial, jury, are to be fully enforced. As trials are ordinarily conducted, the voir dire is of service not only in enabling the court to pass upon a juror's qualifications, but also in assisting counsel in their decision as to peremptory challenges. If the court has found a juror indifferent both on principal cause and to the favor, the examination may be, and often is, useful to the parties in passing on the exercise of their right. In effect it helps in the discretion which the parties have as well as of the court.

If a party in exercising his right of challenge depends upon information obtained independently and outside of the court's authority, he may not complain that the information proved to be false. There is no judicial aid in such a case, and the information is not an outcome of judicial proceedings, nor is it gained as an incident to the court's duty to have an impartial jury. There is a possible exception when the information has been given by the other party outside of the court's authority. It is not necessary to pass upon it, since the information here, although given by the other party, was obtained, as the case is understood, with the court's participation in the inquiry.

When the information is furnished under the court's authority, the right of challenge includes the incidental right in its protection that the information shall be true. It is immaterial whether the information comes from examination of the jurors or from other sources, so long as it is furnished as a part of the judicial proceeding of establishing a panel for the trial of a cause. "Juries, in this state, are organized under the direction of the court" (Rowell v. Railroad, 58 N. H. 514), and if by reason of false information furnished under the court's authority and in organizing the jury, a peremptory challenge as to a prospective juror is not exercised, the party having the right of challenge is as effectively deprived of his...