Vincent v. Smith

• Decision Date: 27 March 1911
• Docket Number: Civil 1183
• Parties: H. C. VINCENT, Defendant and Appellant, v. ALLEN SMITH, Plaintiff and Appellee
• Court: Arizona Supreme Court

114 P. 557

13 Ariz. 346

H. C. VINCENT, Defendant and Appellant, v. ALLEN SMITH, Plaintiff and Appellee

Civil No. 1183

Supreme Court of Arizona

March 27, 1911

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for Yavapai County. Edward M. Doe, Judge. Affirmed.

The facts are stated in the opinion.

Reese M. Ling, for Appellant.

"Parties have a right to rely upon the sworn statement of a juror on his voir dire statement, and waive nothing by accepting a juror when he conceals his unfitness." Heasley v Nichols, 38 Wash. 485, 80 P. 769. When a juror on his voir dire fails to disclose a material fact as to his relations to either of the parties in answer to questions adequate to elicit the same, the party asking the questions if he and his attorneys are ignorant of the fact, is deprived of the benefit he should have derived from the examination and is entitled to a new trial. Tarpey v. Madsen, 26 Utah 294, 73 P. 411; Rhodes v. State, 128 Ind. 189 25 Am. St. Rep. 429, 27 N.E. 866; State v. Morgan, 23 Utah 212, 64 P. 356; Territory v. Chartz, 4 Ariz. 4, 32 P. 166. "The authorities are unanimous that it is the duty of the court to grant a new trial when the juror may have been examined as to his qualifications, and failed to disclose the facts which disqualified him." People v. Plummer, 9 Cal. 310; Busick v. State, 19 Ohio 198. "When a party wants to recover compensation for services done to promote the welfare of a family to which he belongs, the burden of proof that the work must be paid for rests on him. Services rendered a member of a family by another member of the family are presumably gratuitous." Rose v. Mayes, 139 Mo.App. 246, 122 S.W. 769; McMorrow v. Dowell, 116 Mo.App. 289, 90 S.W. 728; Fry v. Fry, 119 Mo.App. 476, 94 S.W. 990; Cole v. Fitzgerald, 132 Mo.App. 17, 111 S.W. 628.

Henry F. Ashurst and J. F. Wilson, for Appellee.

OPINION

CAMPBELL, J.

One of the jurors in this case was upon the bond for costs of the plaintiff, and therefore subject to challenge. Rev. Stats. 1901, par. 2823. The affidavit of appellant, defendant below, filed with his motion for a new trial, states that the juror was returned upon the venire of jurors as J. F. Richards, while the bond was signed John T. Richards, and affiant had no knowledge that the juror and bondsman was the same person. The examination of the juror upon his voir dire is not before us, the reporter's transcript having, on motion, been stricken, because of failure to comply with the provisions of the statute, which enables a party to make such transcript a part of the record on appeal.

We must assume that the juror answered fully and fairly such questions as were put to him upon his voir dire, and indeed it is not contended by appellant that he did not do so. The rule is that where opportunity has been had to examine a juror as to his qualifications, and the juror has not concealed his disqualification by misleading or false answers, the subsequent discovery of the disqualification does not warrant the court in...