Swarnes v. Sitton

• Decision Date: 31 January 1871
• Parties: EMILY SWARNES, Administratrix, etc.v.JOHN A. SITTON.
• Court: Illinois Supreme Court

58 Ill. 155

1871 WL 7887 (Ill.)

EMILY SWARNES, Administratrix, etc.

v.JOHN A. SITTON.

Supreme Court of Illinois.

January Term, 1871.

APPEAL from the Circuit Court of Greene county; the Hon. CHARLES D. HODGES, Judge, presiding.

Messrs. WOODSON & WITHERS and Mr. N. M. KNAPP, for the appellant.

Mr. H. CASE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of assumpsit, brought by John A. Sitton against Emily E. Swarnes, administratrix of Lewis Swarnes, deceased, to recover the value of a quantity of wheat shipped on the steamboat Badger, of which the said Lewis was owner and commander, for St. Louis, and alleged to have been wholly lost through his negligence. A verdict and judgment were rendered in favor of the plaintiff, and the defendant brings the record here, claiming a reversal of the judgment, on the ground that two of the jurors who sat on the trial of the case, had at a former term served upon a jury which found a verdict against the defendant, in a similar case against her, involving a similar loss upon the same boat, at the same time, and that instructions were improperly given and refused.

The affidavits introduced on the hearing in the court below of the motion for a new trial, show that two of the jurors at the term before, had sat upon a jury which found a verdict against the defendant, in a similar case against her, involving a loss upon the same boat, at the same time it was alleged the wheat sued for was lost, and on their examination at the time of being empanelled, they stated that they knew nothing of the case to be tried, and that they had no previously formed opinion. These two jurors had essentially prejudged the case against the defendant, and she had a sufficient ground of challenge against them; and if there had been no fault or negligence on her part, or that of her counsel, in not exercising her right of challenge, she would have been entitled to a new trial, on account of the disqualification of these jurors. Vennum v. Harwood, 1 Gilm. 659.

The defendant was the party defendant in the former case. One of her present counsel was engaged in the trial of it, and knew that these two jurors sat on that trial, and if he or the defendant did not, as stated, recollect the fact, the consequences of such forgetfulness or inattention, should not be visited upon the plaintiff, to deprive him of the benefit of his verdict. The previous trial of a similar question, at the former term of the same court, should have put the defendant or her counsel upon inquiry of the jurors, in regard to any knowledge or information concerning the facts of that case.

The inquiry of the jurors, so far as appears, was as to their acquaintance with the facts of the case in...