Wasko v. Frankel
| Decision Date | 13 September 1977 |
| Docket Number | No. 13140-PR,13140-PR |
| Citation | 116 Ariz. 288,569 P.2d 230 |
| Parties | Robert E. WASKO and Mary Agnes Wasko, husband and wife, Appellants, v. Mark E. FRANKEL, Appellee. |
| Court | Arizona Supreme Court |
Rees, Mercaldo & Smith by Ronald D. Mercaldo, Tucson, for appellants.
Fish, Briney, Duffield & Miller by Richard C. Briney, Tucson, for appellee.
Mary Agnes Wasko and her husband, Robert E. Wasko, brought this action in the Superior Court against Mark E. Frankel, M.D., to recover for negligence in performing disc surgery upon Mrs. Wasko. The jury returned a judgment in favor of Frankel. The Court of Appeals, Division Two, affirmed the judgment in a memorandum decision, filed February 8, 1977. We granted review. Decision of the Court of Appeals vacated and judgment of the Superior Court reversed.
The Waskos urge that the trial court erred when it did not strike two members of the jury panel for cause.
Rule 47(c)(4) and (5) of the Arizona Rules of Civil Procedure provides for challenges of prospective jurors for cause if:
Whether a challenge is to be allowed is largely within the discretion of the trial judge and his discretion will not be disturbed in the absence of abuse of his actions. J. & B. Motors, Inc. v. Margolis, 75 Ariz. 392, 257 P.2d 588 (1953). Of course the discretion to be exercised must be a sound, judicial discretion. We need only examine one of the two jurors complained of to determine that the court did not exercise a sound, judicial discretion.
One of the jurors to which the Waskos objected had experienced back problems. He stated that anyone who underwent a disc operation and could be "up and about" should be thankful for the help he received. He also said that if "a person undergoes that type of thing and ends up being able to be on their feet, it seems kind of hard to be suing someone for malpractice." When questioned by the Waskos' counsel, the juror acknowledged having read about malpractice problems, discussed it with acquaintances in medicine, and formed definite opinions. Upon repeated inquiries by counsel as to whether he could disregard his opinions and give a fair consideration to the evidence, the juror would not answer affirmatively and continually indicated it would be difficult.
Frankel asserts that even if the juror should have been stricken for cause, there was no prejudice to the Waskos because the juror was dismissed by peremptory challenges. It is the Waskos' position, however, that it is prejudicial error to compel a party to waste one of its peremptory challenges to accomplish that which the trial judge should have done. At least one jurisdiction which has considered this argument has adopted it. Crawford v. Manning, 542 P.2d 1091 (Utah 1975). There are three jurisdictions which it might be said have interpretations to the contrary. See Williams v. Hendrickson, 189 Kan. 673, 371 P.2d 188 (1962) (dicta); Wilson v. Ex-Cell-O Corp., 12 Mich.App. 637, 163 N.W.2d 492 (1968) (dicta); Love v. Harvey, 448 P.2d 456 (Okl.1968).
The right of a party to peremptory challenges is a substantial right of which he...
To continue reading
Request your trial
-
State v. Comer
...that forcing use of peremptory challenges to strike jurors who should have been stricken for cause denies the party this right. 116 Ariz. 288, 569 P.2d 230 (1977). Therefore, the court rejected Frankel's contention that the trial court's error was harmless because the juror was stricken by ......
-
State v. Singletary
...E. g., United States v. Allsup, 566 F.2d 68 (9 Cir. 1977); United States v. Nell, 526 F.2d 1223 (5 Cir. 1976); Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230 (Sup.Ct.1977); State v. Moore, 562 P.2d 629 (Utah Sup.Ct.1977); Breeden v. Commonwealth, 217 Va. 297, 227 S.E.2d 734 (Sup.Ct.1976); St......
-
State v. Hickman
...purpose." Id. at 74-75, 92 P.2d at 527. B. ¶ 24 The rule established by Encinas, Kinsey, and Conner was the rule until Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230 (1977). In a civil case, this court, for the first time, ruled that a party's use of a peremptory challenge to remove a juror ......
-
Busby v. State
...denied. See Singer[ v. State, 109 So.2d 7 (Fla.1959)]; Leon v. State, 396 So.2d 203 (Fla. 3d DCA 1981). See also Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230 (Ariz.1977); Jones v. Cloud, 119 Ga.App. 697, 168 S.E.2d 598 (1969); State v. Sugar, 408 So.2d 1329 (La.1982); State v. Ternes, 259 ......