Vaccaro v. Caple

• Citation: 33 Md.App. 413,365 A.2d 47
• Decision Date: 03 November 1976
• Docket Number: No. 13,13
• Parties: Josephine VACCARO et al. v. Lexly W. CAPLE.
• Court: Court of Special Appeals of Maryland

Page 413

33 Md.App. 413

365 A.2d 47

Josephine VACCARO et al. v. Lexly W. CAPLE.

No. 13.

Court of Special Appeals of Maryland.

Nov. 3, 1976.

Bayard Z. Hochberg, Baltimore, with whom were Philip S. Marano, and Michael J. Doxzen, Baltimore, on the brief, for appellants.

Robert H. Bouse, Jr., Baltimore, with whom were Frederick G. Savage and Anderson, Coe & King, Baltimore, on the brief, for appellee.

Argued before DAVIDSON, MELVIN and LISS, JJ.

LISS, Judge.

This case might well be called the 'Case of the Resurrected jurors.' The appellant Josephine Vaccaro infant, was a passenger in an automobile which was involved in a collision with a vehicle operated by Lexly W. Caple, appellee. Suit was filed by appellant and her parents, a jury trial was held in the Circuit Court for Carroll County (Weant, J., presiding), and at the conclusion of all the evidence, verdicts were returned in favor of the appellants. Considering the awards to be grossly inadequate, appellants filed within the time allowed a motion for a new trial, alleging that their right to challenge peremptorily prospective jurors had been impaired. The court after a hearing denied the motion, and it is from the refusal of the court to grant a new trial that this appeal was taken.

It is not necessary for us to give a detailed recitation of the facts of the accident or damages sustained, as this appeal raises only a legal issue-whether the trial court erred by denying appellants' motion for a new trial.

The record discloses that when the case was called for trial, counsel for the parties were each provided with a jury list containing thirty names, and that after voir dire, the clerk of court struck a number of the names by lot. In each instance, lines were clearly marked through the names and addresses of those jurors struck by the clerk. Counsel for the defense also drew a line through the names and addresses of those jurors he wanted to strike peremptorily. Appellants' counsel placed a check mark opposite the names of his peremptory challenges but did not mark through their names and addresses-with the exception of one juror whose name he did mark through and who was actually stricken from the panel. It being the practice in the Carroll County Circuit Court to effectuate peremptory challenges by crossing out the names and addresses of those jurors to be excluded, the court inadvertently did not strike from the panel three of the jurors counsel for appellants had intended to be challenged. The jury was then called by name and seated in the presence of counsel. They were again called by name in the presence of counsel when the clerk took count of the jury. The jurors, including the three intended to be stricken by appellants, were then sworn, and the trial proceeded to conclusion. Counsel for appellants contends that he did not discover the error until the day after the verdict was rendered; and it is conceded that neither the court, the clerk, nor opposing counsel had knowledge of the apparent mistake.

The sole issue raised by this appeal-whether the trial court erred by denying appellants' motion for a new trial-has two facets: First, were the appellants deprived of the right to peremptory challenges allowed them by statute and rule of court; and secondly, did the appellants waive their right to the peremptories by failing to object to the composition of the jury until after a verdict was rendered?

There is no disagreement as to the Maryland law governing peremptory challenges. Maryland Code (1974), Courts and Judicial Proceedings Art., § 8-301, provides:

' § 8-301. Peremptory challenges.

(a) Cases involving death, life imprisonment, or 20 years or more.-* * *

(b) Other cases.-In all other cases, each party is permitted four peremptory challenges; all defendants are considered a single party for this purpose.'

Maryland Rule 543 (1974 Repl.Vol.) provides:

'Rule 543. Jury-Selection, Strikes, Challenges, etc. . . . Law

a. Petit Jury.

3. (Peremptory Strikes-Number) Each party may peremptorily strike, without cause, four persons from the lists of twenty provided for in paragraph 1 of section a of this Rule, and the remaining twelve persons shall thereupon be immediately empaneled and sworn as the petit jury in the action. * * * The right to challenge prospective jurors peremptorily has developed through the common law, case law, statute, and rule of court. The historical background of that right was discussed in depth by Judge Moylan of this Court in Spencer v. State, 20 Md.App. 201, 314 A.2d 727 (1974). In the earlier case of Pearson v. State, 15 Md.App. 462, 291 A.2d 167 (1972), Judge Gilbert, now Chief Judge of this Court, explicated the importance of the peremptory challenge as a means of guaranteeing a fair and impartial jury. While most of the cases cited in these opinions refer to criminal matters, there is no difference in the purpose and effect of the peremptory in a civil or a criminal case.

The function of the peremptory challenge is to eliminate extremes of partiality and to assure the parties that the case is decided solely on the basis of the evidence. The Supreme Court in Swain v. Alabama, 380 U.S. 202, 218, 85 S.Ct 824, 835, 13 L.Ed.2d 759, 771 (1965), discussed its 'raison d'etre':

'. . . peremptories were and are freely used and relied upon in this country, perhaps because juries here are drawn from a greater cross-section of a heterogenous society. The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories, and the process of selecting a jury protracted. The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury. See Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011. The denial or impairment of the right is reversible error without a showing of prejudice . . . (citations omitted) . . . '(F)or it is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.' Lewis v. United States, supra, at 378, (13 S.Ct. (136) at 139, 36 L.Ed. 1011, 1014).'

However, freedom to exercise the right of peremptory challenge is not absolute; and where, as here, the appellants have failed to use due diligence, they will be held to have waived the right. We shall affirm.

The rule is, we are convinced, that when a juror who might otherwise be disqualified for cause is permitted to serve on a jury because of the failure of the aggrieved party to use due diligence in discovering the irregularity, a judgment of that jury will not be disturbed. It seems to us even less justifiable-in such an instance-where the challenge is a peremptory one, which could have been exercised for any arbitrary reason or for no reason at all. As stated in Brice v. State, 264 Md. 352, 366, 286 A.2d 132, 139 (1972):

'Hunch, passing impression, appearance of the prospective juror, or any other consideration may lead to the exercise of the peremptory challenge and no inquiry may be made in regard to why it is exercised.'

Under these circumstances, i. e., with the reason, the motive-the 'why' behind the particular peremptory being known only to the party who exercised the right-and the factor of association being present only to him, it should be clear why the rule requiring due diligence by that party is at least as, if not more, justifiable in the peremptory challenge as it is in the challenge for cause.

Appellants point out that waiver is the voluntary surrender of a right requiring both knowledge and intention and that they had neither knowledge nor intention to waive in this case. But a waiver may occur because a party is estopped by his own conduct: i. e., by a failure to exercise due diligence. Our Court of Appeals in Benson v. Borden, 174 Md. 202, 198 A. 419, 427 (1938), said, at 219, 198 A. at 427:

'In this country 'waiver' and 'estoppel' are often used synonymously by courts and text writers . . .. (T)he demarcation between 'waiver' and 'estoppel' is lucidly delineated in 40 Cyc. 255, as follows: 'While waiver belongs to the family of estoppel, and the doctrine of estoppel lies at the foundation of the law of waiver, they are nevertheless distinguishable terms. * * * Waiver is the voluntary surrender of a right; estoppel is the inhibition to assert it from the mischief that has followed. Waiver involves both knowledge and intention; estoppel may arise where there is no intent to mislead. Waiver depends upon what one himself intends to do; estoppel depends rather upon what he causes his adversary to do. Waiver involves the acts and conduct of only one of the parties; estoppel involves the conduct of both. A waiver does not necessarily imply that one has been misled to his prejudice or into an altered position; an estoppel always involves this element. * * * A waiver may be created by acts, conduct or declarations insufficient to create a technical estoppel." (emphasis added).

In this case, the failure of appellants to exercise due diligence prevented the court from correcting the error which occurred. ¹ If the motion for new trial requested by appellants were granted, it would have required the defense to re-try a case already completed.

The Court of Appeals had before it the same issue in Lee v. Colson, 277 Md. 599, 356 A.2d 558 (1976): A juror whom counsel claimed had been stricken peremptorily was sworn inadvertently on the jury which was empaneled, served during the taking of testimony, and retired for deliberation as to verdict. While the jury was out, counsel for appellant discovered the error but failed to call it to the court's attention. Some two hours later, the jury returned a verdict unfavorable to the appellant. A motion for a new trial was filed wherein for the first time appellant disclosed to the court the inadvertent seating of the peremptorily challenged juror. The motion...