Wallace by Inman v. Campbell

CourtSupreme Court of Alabama
Writing for the CourtFAULKNER; TORBERT, C.J., and MADDOX, J., dissent, with opinion by TORBERT; TORBERT; MADDOX
Citation475 So.2d 521
PartiesTammy WALLACE, an incompetent suing by her guardian, next friend and mother, Rhonda E. INMAN v. David CAMPBELL and the City of Andalusia. 83-680.
Decision Date23 August 1985

Page 521

475 So.2d 521
Tammy WALLACE, an incompetent suing by her guardian, next friend and mother, Rhonda E. INMAN
v.
David CAMPBELL and the City of Andalusia.
83-680.
Supreme Court of Alabama.
Aug. 23, 1985.

Frank J. Tipler, Jr. of Tipler & Tipler, Andalusia, for appellant.

Abner Powell III of Powell, Powell, Pearson & McKathan, Andalusia, for appellee.

FAULKNER, Justice.

This is an appeal from a judgment entered on a jury verdict in favor of the defendants, David Campbell and the City of Andalusia, in a personal injury action brought on behalf of Tammy Wallace. Plaintiff's appeal is bottomed on the proposition that the trial court erred in refusing to grant her motion for a new trial because a juror did not disclose on voir dire that she was a relative of the Covington County Sheriff. We agree and reverse with instructions to grant the motion for a new trial.

Tammy Wallace was a passenger in an automobile driven by one Ricky Bush on the night of July 10, 1982. On that evening

Page 522

David Campbell, a police officer for the City of Andalusia, observed Bush's automobile veer over the center line of the roadway on which it was traveling. Campbell turned on his siren and flashing lights and began pursuing Bush's automobile. Bush sped up and there ensued a high-speed chase, which ended in a crash at a police road-block in Red Level, Alabama. Tammy was severely injured. She has not regained consciousness since the accident.

During voir dire the prospective jurors were asked the following question:

"Have any of you or any member of your family, that is, a reasonably close relative, ever been employed, or otherwise connected with any of the following: The police of any town, fireman of any town, sheriff of any county, or state trooper."

One of the jurors, Cynthia Gail Richburg, whose maiden name was Cynthia Harrell, failed to respond to the above-stated question despite the fact that she is related to Don Harrell, the sheriff of Covington County.

The proper inquiry on a motion for new trial based on improper or non-existent responses to voir dire questions is whether the response, or lack of response, resulted in "probable prejudice" to the movant. Cavalier Insurance Corp. v. Faulk, 368 So.2d 6, 8 (Ala.1979); Freeman v. Hall, 286 Ala. 161, 238 So.2d 330, 335 (1970). In Cavalier Insurance Corp., two jurors failed to disclose on voir dire that they had been represented by one of the law firms involved in the trial in which they served as jurors. During voir dire the venire was asked if any of its members had "ever been represented in any matter by any of the three named members of the law firm in question." The two jurors, a husband and wife, failed to inform counsel that one of the lawyers in question had once filed a suit on their behalf. In that case we ruled that the trial court had abused its discretion in failing to grant the motion for a new trial.

Not knowing that a potential juror is a relative of the county sheriff would probably result in prejudice to the plaintiff in an action against a local policeman when the sole issue litigated was the propriety of a high-speed automobile chase by a police officer seeking to make an arrest. It is highly unlikely that the plaintiff's lawyer would have chosen not to strike Mrs. Richburg had he known of her kinship to Sheriff Harrell. We are aware that not every failure of a venireman to respond correctly to a voir dire question will entitle the losing party to a new trial. See, e.g. Martin v. Mansell, 357 So.2d 964 (Ala.1978); Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970). However, when the prejudice to the movant is probable, we must in fairness reverse the case and remand it for a new trial. Cavalier Insurance Corp..

The plaintiff also complained that on the morning of the closing...

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19 practice notes
  • McWhorter v. State, CR-09-1129
    • United States
    • Alabama Court of Criminal Appeals
    • 4 Octubre 2011
    ...failure of a venireman to respond correctly to a voir dire question will entitle the losing party to a new trial.' Wallace v. Campbell, 475 So. 2d 521, 522 (Ala. 1985)."'It is not "any failure of any prospective juror to respond properly to any question regardless of the excuse or circumsta......
  • Albarran v. State Of Ala., CR-07-2147
    • United States
    • Alabama Court of Criminal Appeals
    • 25 Febrero 2011
    ...failure of a venireman to respond correctly to a voir dire question will entitle the losing party to a new trial." Wallace v. Campbell, 475 So. 2d 521, 522 (Ala. 1985)."It is not 'any failure of any prospective juror to respond properly to any question regardless of the excuse or circumstan......
  • McWhorter v. State, CR–09–1129.
    • United States
    • Alabama Court of Criminal Appeals
    • 22 Noviembre 2013
    ...failure of a venireman to respond correctly to a voir dire question will entitle the losing party to a new trial.’ Wallace v. Campbell, 475 So.2d 521, 522 (Ala.1985). “ ‘It is not “ any failure of any prospective juror to respond properly to any question regardless of the excuse or circumst......
  • Marshall v. State, CR–10–0696.
    • United States
    • Alabama Court of Criminal Appeals
    • 2 Mayo 2014
    ...a venireman to respond correctly to a voir dire question will entitle the losing 182 So.3d 609party to a new trial.’ Wallace v. Campbell, 475 So.2d 521, 522 (Ala.1985)." ‘It is not "any failure of any prospective juror to respond properly to any question regardless of the excuse or circumst......
  • Request a trial to view additional results
19 cases
  • McWhorter v. State, CR-09-1129
    • United States
    • Alabama Court of Criminal Appeals
    • 4 Octubre 2011
    ...failure of a venireman to respond correctly to a voir dire question will entitle the losing party to a new trial.' Wallace v. Campbell, 475 So. 2d 521, 522 (Ala. 1985)."'It is not "any failure of any prospective juror to respond properly to any question regardless of the excuse or circumsta......
  • Albarran v. State Of Ala., CR-07-2147
    • United States
    • Alabama Court of Criminal Appeals
    • 25 Febrero 2011
    ...failure of a venireman to respond correctly to a voir dire question will entitle the losing party to a new trial." Wallace v. Campbell, 475 So. 2d 521, 522 (Ala. 1985)."It is not 'any failure of any prospective juror to respond properly to any question regardless of the excuse or circumstan......
  • McWhorter v. State, CR–09–1129.
    • United States
    • Alabama Court of Criminal Appeals
    • 22 Noviembre 2013
    ...failure of a venireman to respond correctly to a voir dire question will entitle the losing party to a new trial.’ Wallace v. Campbell, 475 So.2d 521, 522 (Ala.1985). “ ‘It is not “ any failure of any prospective juror to respond properly to any question regardless of the excuse or circumst......
  • Marshall v. State, CR–10–0696.
    • United States
    • Alabama Court of Criminal Appeals
    • 2 Mayo 2014
    ...a venireman to respond correctly to a voir dire question will entitle the losing 182 So.3d 609party to a new trial.’ Wallace v. Campbell, 475 So.2d 521, 522 (Ala.1985)." ‘It is not "any failure of any prospective juror to respond properly to any question regardless of the excuse or circumst......
  • Request a trial to view additional results

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