Spencer v. Kirby, No. 17493
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | TAYLOR; OXNER; STUKES |
| Citation | 234 S.C. 59,106 S.E.2d 883 |
| Parties | Myrtle B. SPENCER, as Administratrix of the Estate of Gilbert Blease Spencer, Appellant-Respondent, v. Elbert Boone KIRBY, Respondent-Appellant. |
| Docket Number | No. 17493 |
| Decision Date | 26 January 1959 |
Page 883
Gilbert Blease Spencer, Appellant-Respondent,
v.
Elbert Boone KIRBY, Respondent-Appellant.
Page 884
[234 S.C. 61] Jonathan Z. McKown, Gaffney, for appellant-respondent.
C. E. Saint-Amend, Gaffney, Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for respondent-appellant.
TAYLOR, Justice.
This appeal arises out of an action brought in the Court of Common Pleas for Cherokee County by the Administratrix of the Estate of Gilbert Blease Spencer against the defendant, Elbert Boone Kirby, for damages allegedly arising out of the death of the deceased through an automobile collision.
The case was tried befoe the Honorable T. B. Greneker and a jury, resulting in a verdict for plaintiff in the amount of $1,350 actual damages and $3,650 punitive damages. Timely motions for nonsuit, directed verdict, and judgment non obstante veredicto or in the alternative for a new trial were made and all denied except the last which was granted and a new trial ordered upon the ground that the foreman of the petit jury had been a member of the grand jury when a 'No
Page 885
Bill' was returned on an indictment charging the defendant, Elbert Boone Kirby, with the crime of murder for the death of plaintiff's intestate arising out of the same collision. At the hearing of the motion for a new trial, it was stipulated between the parties that the foreman of the petit jury had been a member of the grand jury when the indictment against the defendant was considered and a 'No Bill' found. No affidavits or evidence were submitted by attorneys for either side to support or resist the motion on the question of disqualification of the juror.Plaintiff now appeals from the Order of the Presiding Judge granting the motion for a new trial, and defendant appeals from the Order refusing his motion for a directed verdict and judgment non obstante veredicto.
In denying the motion for judgment non obstante veredicto, the trial Judge stated that, in his opinion, the case was [234 S.C. 63] one requiring submission to the jury; but with respect to the defendant's contention that one of the jurors was disqualified by reason of his having been a member of the grand jury which had found a 'No Bill' upon the charge in the indictment arising out of the same collision, he was of opinion that 'the parties to this action should have a trial before a jury of which no person has prejudged the case'; that the motion for a new trial should, therefore, be granted, and ordered the case restored to Calendar 1, Court of Common Pleas for Cherokee County for a new trial.
Appellant contended and the trial Judge apparently considered that Title 38-103, Code of Laws of South Carolina, 1952, which provides that 'No member of the grand jury which had found an indictment shall be put upon the jury for the trial thereof.' was applicable to the situation at bar. With this we do not agree as the foregoing has reference to trial of one charged with the commission of a crime and has no application to instant case.
Title 38-202, Code of Laws of South Carolina, 1952, provides:
'The court shall, on motion of either party in the suit, examine on oath any person who is called as a juror therein to know whether he is related to either party, has any interest in the cause, has expressed or formed any opinion or is sensible of any bias or prejudice therein and the party objecting to the juror may introduce any other competent evidence in support of the objection. If it appears to the court that the juror is not indifferent in the cause, he shall be placed aside as to the trial of that cause and another shall be called.'
It is provided in Section 38-203, Code of Laws of South Carolina, 1952, that:
'All objections to jurors called to try prosecutions, actions, issues or questions arising out of actions or special proceedings in the various courts of this State, if not made before the juror is empaneled for or charged with the trial of such prosecution, action, issue or question arising out of an action [234 S.C. 64] or special proceeding, shall be deemed waived and if made thereafter shall be of none effect.'
The usual inquiry was made of the venire with respect to relationship of the parties, but no inquiry was made as to whether they had an interest in the cause, had expressed or formed an opinion thereabout, or were sensible of any bias or prejudice therein as set forth in Title 38-202, Code of Laws of South Carolina, 1952, and no request therefor was made by counsel; neither was there any objection to the qualifications of any of the jurors before they were empaneled.
'No irregularity in any writ of venire facias or in the drawing, summoning, returning or empanelling of jurors shall be sufficient to set aside the verdict, unless the party making
Page 886
the objection was injured by the irregularity or unless the objection was made before the returning of the verdict.' 38-214, Code of Laws of South Carolina, 1952.Upon motion for a new trial based upon disqualification of one or more of the jurors, it is incumbent on movant to show (1) the fact of disqualification, (2) that such disqualification was unknown before the verdict, and (3) that movant was not negligent in failing to make discovery of the disqualification before verdict. See, State v. Jones, 90 S.C. 290, 73 S.E. 177; State v. Rayfield, 232 S.C. 230, 101 S.E.2d 505.
In instant case no showing whatever was made except that it was stipulated between the parties that the foreman of the petit jury had previously served as a grand juror at the time a 'No Bill' was found against the defendant. There was no objection to the qualifications of any of the jurors interposed prior to their being empaneled or before the returning of the verdict, no showing that such was unknown before the verdict, that they were not negligent in failing to make discovery of the disqualification before the verdict, or that injury had been suffered thereby. In fact, lack of knowledge is not contended, and defendant could not have been prejudiced thereby as the grand jury of which [234 S.C. 65] the juror was formerly a member returned a 'No Bill' as to defendant. Had defendant exercised ordinary care as to the qualifications of the jurors, it would have been evident that this juror has served as a member of the grand jury when the indictment was under consideration as such membership is a matter of public record. One will not be permitted to take his chances upon a favorable verdict and upon disappointment have the verdict set aside upon a technicality; State v. Johnson, 66 S.C. 23, 44 S.E. 58; State v. Harreld, 228 S.C. 311, 89 S.E.2d 879; State v. Rayfield, supra. Of interest on this question are State v. Robertson, 54 S.C. 147, 31 S.E. 868; Mew v. Charleston & S. Ry. Co., 55 S.C. 90, 32 S.E. 828; State v. Johnson, 123 S.C. 50, 115 S.E. 748; Sellars v. Collins, 212 S.C. 26, 46 S.E.2d 176.
We are, therefore, of opinion that the Order granting a new trial upon the ground of disqualification of one of the jurors must be set aside.
There remains for determination the question of whether or not the Court erred in refusing defendant's motions for a directed verdict and judgment non obstante veredicto.
To support his contention that the trial Judge erred in not granting his motions for a directed verdict and judgment non obstante veredicto, defendant relies upon Section 46-424, Code of Laws of South Carolina, 1952, which reads as follows:
'The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on such highway.'
It being contended that the only reasonable inference to be drawn from the evidence is that plaintiff's intestate came out of the private driveway without stopping thereby failing to yield the right of way as required by the statute.
On the 29th day of January, 1956, the defendant, while driving along a Farm to Market highway, collided with a car driven by...
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State v. Johnson, No. 18532
...the disqualification before verdict, and was not guilty of a lack of due diligence in discovering any disqualification. Spencer v. Kirby, 234 S.C. 59, 106 S.E.2d 883, and State v. Rayfield, The testimony of the jurors Owens and Traynor on their Voir dire examination revealed the fact that t......
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Sherer v. James, No. 0437
...other party's motion for a mistrial made after the request was submitted and ruled upon. The cases relied on by James [ Spencer v. Kirby, 234 S.C. 59, 106 S.E.2d 883 (1959); State v. Rayfield, 232 S.C. 230, 101 S.E.2d 505 (1958); State v. Harreld, 228 S.C. 311, 89 S.E.2d 879 (1955); Brown v......
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Pittman v. Galloway, No. 0093
...a matter of law, the evidence must be such that only one reasonable inference can be drawn from the evidence presented. Spencer v. Kirby, 234 S.C. 59, 106 S.E.2d 883 (1959); Shearer v. DeShon, 240 S.C. 472, 126 S.E.2d 514 (1962). In reviewing the propriety of a denial of a motion for a dire......
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Cartee v. Lesley, No. 22622
...may be submitted to the jury, there must be evidence the statutory violation proximately contributed to the injury. See Spencer v. Kirby, 234 S.C. 59, 106 S.E.2d 883 (1959); Cirsosky v. Smathers, 128 S.C. 358, 122 S.E. 864 (1924). Ordinarily, whether or not the statutory violation contribut......
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State v. Johnson, No. 18532
...the disqualification before verdict, and was not guilty of a lack of due diligence in discovering any disqualification. Spencer v. Kirby, 234 S.C. 59, 106 S.E.2d 883, and State v. Rayfield, The testimony of the jurors Owens and Traynor on their Voir dire examination revealed the fact that t......
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Sherer v. James, No. 0437
...other party's motion for a mistrial made after the request was submitted and ruled upon. The cases relied on by James [ Spencer v. Kirby, 234 S.C. 59, 106 S.E.2d 883 (1959); State v. Rayfield, 232 S.C. 230, 101 S.E.2d 505 (1958); State v. Harreld, 228 S.C. 311, 89 S.E.2d 879 (1955); Brown v......
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Pittman v. Galloway, No. 0093
...a matter of law, the evidence must be such that only one reasonable inference can be drawn from the evidence presented. Spencer v. Kirby, 234 S.C. 59, 106 S.E.2d 883 (1959); Shearer v. DeShon, 240 S.C. 472, 126 S.E.2d 514 (1962). In reviewing the propriety of a denial of a motion for a dire......
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Cartee v. Lesley, No. 22622
...may be submitted to the jury, there must be evidence the statutory violation proximately contributed to the injury. See Spencer v. Kirby, 234 S.C. 59, 106 S.E.2d 883 (1959); Cirsosky v. Smathers, 128 S.C. 358, 122 S.E. 864 (1924). Ordinarily, whether or not the statutory violation contribut......