Vivion v. Brittain

• Decision Date: 21 May 1973
• Docket Number: No. 4167,4167
• Citation: 510 P.2d 21
• Parties: Kristin A. VIVION, Appellant (Defendant below), v. Dennis F. BRITTAIN, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 21

510 P.2d 21

Kristin A. VIVION, Appellant (Defendant below), v. Dennis F. BRITTAIN, Appellee (Plaintiff below).

No. 4167.

Supreme Court of Wyoming.

May 21, 1973.

John A. MacPherson and T. Michael Golden, of Brimmer, MacPherson & Golden, Rawlins, for appellant.

John E. Stanfield, of Smith, Stanfield & Mendicino, Laramie, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE, and McINTYRE, JJ.

Mr. Justice McEWAN delivered the opinion of the court.

This was a personal injury and property damage action arising out of a motor vehicle accident. A jury of six ¹ found in favor of the plaintiff and assessed the amount of his recovery at $30,000, for which judgment and costs were entered and from which this appeal was taken.

The collision of plaintiff's and defendant's automobiles took place at the intersection of 18th and Garfield Streets in the City of Laramie, Wyoming, at approximately noon on Saturday, October 21, 1967. The day was clear and the road was paved and dry. The plaintiff was proceeding north on 18th, which was a through street, and the defendant was proceeding east on Garfield. There was a stop sign on Garfield which the defendant did not see. She proceeded through the stop sign without stopping and struck plaintiff's vehicle, which vehicle turned over and came to rest on its top. It was stipulated that the damage to the plaintiff's automobile was $1,936.89, his loss of wages $1,188.89, and his medical and hospital expenses $353.71. No separate award was made for those damages and they were included in the $30,000 judgment.

The three points raised by the defendant on appeal were that one juror, as a convicted felon, was incompetent to serve; that the same juror, when asked on voir dire, failed to disclose his involvement in a personal injury law suit; and that the damages were excessive.

The jury returned its verdict on June 13, 1972, and judgment was entered on June 16, 1972. On June 26, 1972, the defendant filed a motion for new trial setting forth as one of the grounds that one of the jurors was not competent to serve because he was a convicted felon, and referred to § 1-78, W.S.1957, which provides:

'A person is not competent to act as juror: * * * who has been convicted of * * * any felony * * *.'

Attached to the motion were certified copies of criminal proceedings conducted in the Federal District Court of the United States for the District of Wyoming showing the juror had in 1948 pleaded guilty to the charge of theft from an interstate shipment. The imposition of sentence was suspended and the juror was placed on probation for three years. Because of his good conduct the juror was discharged from probation nine months prior to the expiration of the three year period.

The defendant argued that this court had not heretofore had occasion to decide this issue and urged that we adopt the rule followed in a long line of Texas cases that 'If, upon motion for new trial, it is shown that a juror was disqualified to act as a juror under a statutory provision covering conviction of a felony, then a new trial must be ordered, without regard to a showing of injury or probable injury or of consent or waiver.' She cited a Texas case, Ex parte Bronson, 158 Tex.Cr.R. 133, 254 S.W.2d 117, in which that court stated it had consistently construed statutory provisions covering disqualification grounds as providing and absolute disqualification of a felon for jury service. Since that case, as well as others of which we are aware, considered the statutory provisions we must look to the various statutes. The Texas statute provided that the fact a person had been convicted of a felony rendered him incapable or unfit to serve on a jury even though both parties may have consented. The specific provision that the disqualification cannot be waived even though both parties may have consented is rather unique and seems to appear only in the Texas criminal statutes. Since our statute has no such limitation as the Texas criminal statute, any case construing their statute is not applicable or persuasive. Texas civil jury statutes ² do not have such a provision, and there are Texas cases holding that statutory disqualifications may be waived. Mitchell v. Burleson, Tex.Civ.App., 466 S.W.2d 646, 658; Coca Cola Bottling Company v. Mitchell, Tex.Civ.App., 423 S.W.2d 413, 417-418; DeLeon v. Longoria, Tex.Civ.App., 4 S.W.2d 222, 225; Travelers' Ins. Co. v. Peters, Tex.Civ.App., 3 S.W.2d 568, 571; San Antonio & A. P. Ry. Co. v. Gray, Tex.Civ.App., 66 S.W. 229, 232.

The general rule is that objection to a juror because of his statutory disqualification may be waived. 47 Am.Jur.2d, Jury, § 219, p. 808; 50 C.J.S. Juries § 251, pp. 1009, 1011. The supreme court of Oregon in interpreting a statute similar to ours and in a factual situation quite like that at hand held in a criminal case that incompetence because of conviction of a felony could be waived. State v. Benson, 235 Or. 291, 384 P.2d 208, 210. The Montana supreme court has also held that such a disqualification may be waived. Stagg v. Stagg, 96 Mont. 573, 32 P.2d 856, 864. See also Ford v. United States, 5 Cir., 201 F.2d 300, 301. We are therefore of the opinion that our statute does not render a convicted felon ipso facto incompetent to serve as a juror.

Although the defendant contended before this court that she was unaware the juror was a convicted felon until after the verdict was rendered, no such claim was made in the motion for new trial. She also contended the jurors had been selected from a panel which had earlier at the start of the term been qualified under the Wyoming statutes by the county attorney, and that the said juror had failed to respond when the panel was asked if any of the members had been convicted of a felony. The defendant did not cite nor are we aware of any statutes which require the county attorney to inquire into the qualification of a jury panel. The record does not show that such inquiry was made by the county attorney, and it therefore follows that no showing was made that any member of the jury panel was asked if he had ever been convicted of a felony.

The record does contain a transcript of the voir dire proceedings. There were 12 prospective jurors passed for cause and then, according to agreement between the parties, each party excused three persons so that six jurors remained. Counsel agreed to the jury of six thus selected and stipulated they did not want an alternate and, further, in the event that one or more jurymen was unable to sit the entire case they would accept the verdict of the remaining jurymen.

Parties to an action are entitled to a fair and impartial jury. Redwine v. Fitzhugh, 78 Wyo. 407, 329 P.2d 257, 260, 72 A.L.R.2d 664, reh. den. 78 Wyo. 426, 330 P.2d 112; 50 C.J.S. Juries § 208, p. 944. The method of determining if a juror is qualified and can reasonably be expected to be fair and impartial is through voir dire examination. Rule 17 of the Uniform Rules of All District Courts of Wyoming, although not in effect when this case was tried, recognized this principle wherein it states:

'a. The only proper purpose of voir dire of jurors is to select a panel of six jurors in a civil case-twelve jurors if specific demand is made and twelve jurors in a criminal case, who will fairly and impartially hear the evidence presented and render a just verdict and to determine the ground for any challenge for cause prescribed by Sections 1-121 (civil) or 7-224 (criminal), W.S.1957, as modified by judicial decision. * * *' ³

There is nothing in the record to show that any member of the jury was ever asked any question which would elicit from them any answer as to their statutory jury qualifications under § 1-78. Under the circumstances we hold that defendant waived any objection to the qualification of this juror because of his previous felony conviction. See 66 C.J.S. New Trial § 23, p. 116.

On voir dire examination counsel for the plaintiff asked the jury panel if they or their families had ever been involved in a law suit for 'personal injuries.' There was no response by any of the panel members. In her supplemental motion for new trial defendant asked that the judgment be set aside because the felon juror had, together with his wife, been previously involved in litigation. In support of the motion certified copies of court records of the District Court of Carbon County were attached. They showed that in 1953 this juror filed suit for damages to his automobile as a result of a collision and, at the same time, his...