Terre Haute Elec. Co. v. Watson

• Decision Date: 10 May 1904
• Citation: 33 Ind.App. 124,70 N.E. 993
• Parties: TERRE HAUTE ELECTRIC CO. v. WATSON.
• Court: Indiana Appellate Court

33 Ind.App. 124

70 N.E. 993

TERRE HAUTE ELECTRIC CO.

v.WATSON.

Appellate Court of Indiana, Division No. 2.

May 10, 1904.

Appeal from Circuit Court, Clay County; P. O. Colliver, Judge.

Action by Thomas Watson against the Terre Haute Electric Company. Judgment for plaintiff. Defendant appeals. Affirmed.

A. W. Knight, for appellant. Coffey & McGregor, for appellee.

COMSTOCK, J.

Appellee recovered in the court below a verdict and judgment thereon in the sum of $1,000 for personal injuries alleged to have been sustained on account of a collision between one of appellant's street cars, in which he was riding as a passenger, and a switching train on the Terre Haute & Indianapolis Railroad Company. The cause was put at issue by general denial. The only error relied on for reversal is the overruling of appellant's motion for a new trial. The first reason set out in said motion which is discussed is the third, and is the overruling of defendant's challenge for cause to one Archer, a juror called on the trial of the cause. Said juror on his voir dire answered as follows: “Q. Have you, Mr. Archer, any prejudice against this street car company? A. I think I have. Q. I will ask you if your prejudice against the street car company is such as would prevent you from giving the defendant a fair and impartial trial in this case according to the law and the evidence? A. No, sir. Q. Do you think you could fairly and impartially try the case as if you had no prejudice against this company? A. Yes. Q. On what grounds are you prejudiced against the defendant? A. On account of the strike. Q. Have you any prejudice against the company in this case? A. No, sir.” Defendant's counsel, in objecting, said: “I challenge the juror for cause for the reason that in answer to a question by the attorney for the defendant he states that he is prejudiced against the defendant.” The court overruled the challenge made by defendant, to which defendant excepted, and counsel for defendant excused Mr. Archer. The defendant thereupon objected to the competency of said Archer to serve as a juror, and stated to the court, as ground for challenge, that said Archer had stated in answer to a question by defendant's counsel that he was prejudiced against the defendant, but the court overruled the defendant's challenge, to which ruling the defendant at the time excepted, and then peremptorily challenged and excused said juror. The decisions all recognize the principle “that the object of the law is to procure impartial and unbiased persons for jurors.” Juries should be devoid of prejudice. Upon this plain proposition we cite a few Indiana cases: Keiser v. Lines, 57 Ind. 431;Fletcher v. Crist, 139 Ind. 126, 38 N. E. 472;Chandler v. Ruebelt, 83 Ind. 139;Stoots v. State, 108 Ind. 415, 9 N. E. 380;Brown v. State, 70 Ind. 576; Elliot, C. J., in Pearcy v. Ins. Co., 111 Ind. 61, 12 N. E. 98, 60 Am. Rep. 673;Block v. State, 100 Ind. 357. Conceding, without deciding, that the court erred in holding the juror qualified, were the substantial rights of appellant prejudiced by the action of the court? Only errors affecting the substantial rights of litigants are cause for reversal. Horner's Ann. St. § 398. Archer did not sit as a juror. A jury was subsequently selected, and it does not appear that appellant's peremptory challenges were exhausted. It is contended by appellant that the peremptory challenge did not cure the error of the court in overruling the challenge for cause. Brown v. State, supra, and Fletcher v. Crist, supra, are cited in support of this claim. These cases so hold, but in Siberry v. State, 149 Ind. 684, 39 N. E. 936, Brown v. State is expressly overruled, and Fletcher v. Crist, supra, is modified so far as it follows and recognizes Brown v. State, supra. We quote from Siberry v. State: “As long as he had accepted the jury without having exhausted his peremptory challenges, the error, if error it was, of forcing him to use two of his peremptory challenges to get rid of the two alleged incompetent jurors, did no harm, and hence will be disregarded by the express terms of the statute.” Upon the subject of reversal of judgment for harmless error, see, also, Union Mutual Life Ins. Co. v. Buchanan, 100 Ind. 63;McGee v. State, 103 Ind. 444, 3 N. E. 139;Walling v. Burgess, 122 Ind. 299, 22 N. E. 419, 23 N. E. 1076, 7 L. R. A. 481;Rinehart v. Niles, 3 Ind. App. 553, 30 N. E. 1, and cases cited.

During the trial the plaintiff was asked how much money he was able to earn before he received his injury. Defendant objected on the ground that the evidence thus sought to be elicited tended to establish special damages not prayed for in the complaint, and, not being alleged, it was error to admit evidence thereof.

The...