Wells v. Autry

Decision Date18 May 1970
Docket NumberNo. 45810,45810
Citation235 So.2d 706
PartiesGlynn WELLS, et al. v. Mrs. Margaret Kay AUTRY.
CourtMississippi Supreme Court

Laurel G. Weir, Philadelphia, Strong, Smith & Deramus, Louisville, for appellants.

J. Hoy Hathorn, Louisville, Douglas C. Stone, J. Tyson Graham, Columbus, for appellee.

JONES, Justice.

Appellant sued appellee in the Circuit Court of Winston County for damages because of alleged negligence of the appellee resulting in the death of Mrs. Carrie L. Wells. The suit arose from an automobile collision. The jury returned a verdict for the appellee. We affirm.

The only assignments of error which are argued relate: (1) to one of the instructions given for the appellee; and (2) to the failure of the lower court to grant a new trial for the reasons hereinafter stated.

Insofar as the instructions are concerned, we are of the opinion that the jury was fully instructed and that the issue was properly presented to them by the instructions taken as a whole.

The second question argued is set up in the motion for a new trial, being the sixth ground thereof, which reads as follows:

Defendant well knew as well as her counsel that said witness Sam E. Smith would be called to testify for defendant. This was a complete surprise as to the plaintiffs. One of the jurors selected was an employee of witness Sam E. Smith and in all probability had knowledge of the drawing and in all probability had worked on same. No alternate juror was selected by the Court. Since this fact has come to the attention of counsel for the plaintiffs demand is now made for oral evidence to be heard immediately upon this question of fact and plaintiff be permitted to prove the facts concerning this allegation. It is submitted that this circumstance was highly improper, whether intentional or not, and led to the jury returning a verdict for defendant.

When this motion was being presented, the attorney for appellants made the following oral statement:

Plaintiffs now offer to introduce evidence and proof that defendant well knew, along with her counsel, that a witness, Sam E. Smith, would be called to testify for the defendant, and this was a complete surprise to the plaintiffs. One of the jurors selected was an employee of the witness Sam E. Smith, and we offer to prove that he had knowledge of the testimony of Sam E. Smith and helped in procuring the drawing that was introduced in evidence and had a big part in the course and conduct of this trial. No alternate juror was selected, and that this unduly influenced the jury to the extent that a verdict for the defendant was returned, this juror's name being James Stanley and being a regular employee of the said Sam E. Smith. The court's decision on this issue was:

The Court has carefully examined the motion for a new trial in its entirety and has carefully considered each ground stated therein, including the ground designated as number six in the motion, which has reference to the matter just mentioned orally. In the first place, the said San E. Smith was not a witness to the accident. This witness or engineer was simply employed to draw a plat or diagram of the physical setting, that is the highway and its immediate surrounding area. He did not purport to know of testify in any respect about the accident or about who was at fault. In the second place, all jurors were carefully questioned on their voir dire as to whether any one had discussed the case with them or as to whether they had for any reason formed any opinion as to how the case should be decided, and every juror answered that he had not heard the case discussed and had not formed any opinion or conclusion about the case.

The Court would like to further add that the weight of the evidence in this case, in the opinion of the Court, was so overwhelming for the defendant that this Court does not believe a verdict for the plaintiff would have been affirmed in the Supreme Court of plaintiff had won a verdict and the case had been appealed. Consequently, the Court does not see how the jury could have possibly reached any other verdict, and the motion for a new trial is overruled. In making this ruling the Court assumes that the plaintiff could and would prove what he sets out in his motion, and this ruling is made with that assumption.

The Court reached the right conclusion in solving said problem.

We have been cited no cases from this State or anywhere else bearing upon this question. The Mississippi cases presented by the parties were cases wherein the juror was employed by some company or man who was plaintiff or defendant to the litigation.

This case is not such a one. Here, the juror involved was employed by an engineer who was a witness in the case and had no interest therein. All that the engineer did was to make a plat or map of the road for a certain distance. The plat showed no signs of where or how the accident occurred, and had no more to do with the case than a similar map prepared by the highway department would have had, except it showed the improvements, such as houses, etc. situated on adjacent lands. The witness stated nothing which would indicate in any way how or why the accident happened, nor did he even insinuate that he had an opinion, or if he did, what that opinion was. He simply identified the plat as made by him and as being correct.

Under these facts, this juror was in the same position as some resident of that part of the county, who passed over the road every day and was thoroughly familiar with the curves and inclines, intersecting roads, adjacent buildings, etc., but who had not seen the accident and knew nothing about how or why it happened.

The judge also stated that he interrogated the jurors while being empanelled and all said they had no opinion. The correctness of the map was not disputed.

Knowledge by a juror of incidental or collateral facts, or facts about which there is no controversy, will not render him incompetent to sit in the trial of a case. 47 Am.Jur.2d Jury § 276, page 851 (1969).

The Tennessee Court of Appeals (certiorari denied by the Tennessee Supreme Court) had this issue before it in Kunk v. Howell, 40 Tenn.App. 183, 289 S.W.2d 874, 73 A.L.R.2d 1304 (1956).

There was involved in that case an action because of death resulting from an automobile collision, and the following occurred:

After the examination of two witnesses, a juror, already accepted and sitting, disclosed to the court that the testimony of these witnesses recalled to his mind that he passed the scene before the cars had been moved. On being interrogated, he stated unequivocally that he gained no impression as to who was at fault, and that he would accept the proof on any question of fact in preference to his own opinion. Under the common law as it first developed, jurors were selected because of their personal knowledge of the facts; but under the modern doctrine, anyone who has personal knowledge of such material facts as will tend to create or influence an opinion is regarded as incompetent to sit as a juror.

The Tennessee Court said that whether a juror's knowledge is of such a nature as will be likely to bias him, is a matter addressed to the sound discretion of the trial court. However, a knowledge of undisputed facts or of facts merely collateral or incidental will not render incompetent a juror who disclaims any interest in the merits of the case. The Supreme Court of Tennessee found no abuse of discretion in the overruling by the lower court of a motion for a mistrial.

In the annotations in 73 A.L.R.2d, page 1312, following the said Tennessee case, it is stated that a number of cases have held and recognized that a juror would not be disqualified under the circumstances considered because of previous knowledge of facts of the case. In most instances the decision rests upon a finding in effect, that the juror would make his decision upon the facts as proved by the evidence, without being influenced by any previous knowledge of the facts.

In Kansas there was the case of Delaney v. City of Salina, 34 Kan. 532, 9 P. 271 (1886), being a contest of a will, alleging that the testator's mind was weak and unsound and that he was induced by fraud and undue influence to execute the will. It was held that one who was acquainted with him prior to his last illness and prior to the time it was claimed that his mind became weak and unsound, but who did not see him during his last sickness, might be a competent juror in a case, although he may have had an opinion concerning the condition of the testator's mind at the time he last saw him.

The Missouri court held in the case of Walker v. Hassler, St. Louis Court of Appeals, (Mo.App.) 240 S.W. 257 (1922) as stated in the fifth syllabus:

In an action for trespass...

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