Wilson v. Childs

• Decision Date: 10 May 1993
• Docket Number: No. 2049,2049
• Citation: 315 S.C. 431,434 S.E.2d 286
• Court: South Carolina Court of Appeals
• Parties: Helen L. WILSON, as Personal Representative of the Estate of Joe Wilson, Appellant, v. Paul E. CHILDS, M.D., Respondent. . Heard

Page 286

434 S.E.2d 286

315 S.C. 431

Helen L. WILSON, as Personal Representative of the Estate of Joe Wilson, Appellant, v. Paul E. CHILDS, M.D., Respondent.

No. 2049.

Court of Appeals of South Carolina.

Heard May 10, 1993.

Decided July 6, 1993.

Fred Thompson, III, of Scardato & Thompson, Charleston, and William deForest Thompson, of Thompson & O'Brien, Fort Lauderdale, FL, for appellant.

C. Bradley Hutto and Charles H. Williams, of Williams & Williams, Orangeburg, for respondent.

CURETON, Judge:

In this wrongful death and survival action, the Appellant, Helen Wilson, alleged medical malpractice by the Respondent, Dr. Paul Childs, in his treatment of her deceased husband. The jury returned a verdict for Childs. On appeal, Wilson asserts the jury's verdict should be vacated because a non-citizen served on the jury. She also appeals the trial court's refusal to exclude certain jurors for cause, its failure to permit additional voir dire, and its refusal to admit certain evidence. We affirm.

The decedent was diagnosed as diabetic by Childs in January 1985. Childs testified the decedent never requested a complete physical although one was offered. On April 1, 1986, Childs scheduled the decedent for an x-ray of the gastrointestinal tract after the decedent complained of rectal bleeding and other symptoms. On April 3rd, after examining the x-ray, Childs prescribed medication to treat duodenitis, and scheduled the decedent for another appointment on May 13th.

On April 22nd, while Childs was on vacation, the decedent was examined by another physician and immediately hospitalized. Tests revealed cancer of the colon, which had metastasized to the decedent's lungs, bone, and liver. On May 13th, he died as a result of complications following surgery to his colon.

Wilson alleged Childs departed from the appropriate standard of care in his treatment of her husband. She further alleged the decedent's colon cancer would have been treatable if diagnosed in January 1985, when the decedent first visited Childs, or if diagnosed in the fall of 1985, when the decedent stated to several acquaintances, and allegedly to Childs, that he was experiencing rectal bleeding.

Among other defenses, Childs asserted the decedent had been contributorily negligent by failing to report his rectal bleeding and other symptoms.

I.

Wilson asserts the trial court erred by failing to grant her motion for a new trial when, approximately one month subsequent to trial, she discovered that a Syrian national and resident of Orangeburg County, Mohamed K. Hloubi, had served on the jury. We disagree.

Relying on Moore v. Jenkins, 304 S.C. 544, 547, 405 S.E.2d 833, 835 (1991) for the proposition that denial of the right to trial by jury of one's peers is prejudicial as a matter of law, and upon S.C.Code Ann § 14-7-130 ¹ for the proposition that a juror must be a United States citizen, she urges this Court to adopt a per se rule that a non-citizen's service on a jury is ground to vacate the jury's verdict. Alternatively, she argues that should this court not adopt a per se rule, we should nonetheless, hold she was not negligent in failing to discover Hloubi's disqualification prior to verdict.

It is unnecessary for this Court to reconcile the conflicting interpretations of § 14-7-130 urged by the parties. The service of an alien on a jury does not per se invalidate the jury's verdict. Kohl v. Lehlback, 160 U.S. 293, 301-02, 16 S.Ct. 304, 307, 40 L.Ed. 432 (1895) (objection to a juror's alienage may be waived); State v. Quarrel, 2 S.C.L. (2 Bay) 150, 152 (1798) (although a juror may be challenged as a noncitizen, this challenge is waived once the juror is sworn); 47 Am.Jur.2d Jury § 217 (1969) (the right to challenge a juror's disqualification because of alienage may be waived); cf. State v. DeYoung, 209 S.C. 482, 483-84, 41 S.E.2d 100, 101 (1947) (although juror was not a county resident as required by statute, this objection was waived when not made before impaneling of the jury); Mew v. Charleston & Savannah Ry. Co., 55 S.C. 90, 95-96, 32 S.E. 828, 830 (1899) (although the state constitution required each juror to be a registered voter, this objection was waived when its assertion was untimely); Gomez v. United States, 245 F.2d 344, 346 (5th Cir.1957) (when an objection to a juror relates to a statutory disqualification, the objection may be waived); Pogue v. State, 429 So.2d 1159, 1161 (Ala.Crim.App.1983) (although a juror who is not a county or state resident may be challenged for cause, this objection is waived once the jury is sworn); 50 C.J.S. Juries §§ 269, 270 (1947) (although a juror's disqualification is a ground to challenge him for cause, this challenge must ordinarily be urged before verdict).

S.C.Code Ann. § 14-7-1030 provides objections to jurors not made prior to impanelment are waived. If an objection is made after impanelment, the objecting party must demonstrate he could not have discovered the ground for the objection through due diligence. Southern Welding Works, Inc. v. K & S Constr. Co., 286 S.C. 158, 162, 332 S.E.2d 102, 105 (Ct.App.1985); see Thompson v. O'Rourke, 288 S.C. 13, 14, 339 S.E.2d 505, 506 (1986).

On his juror information card, Hloubi stated his place of birth was "Aleppo, Syria," suggesting he could have been a foreign national. He returned this card to the court prior to trial, where it was available to the parties. Additionally, Wilson has not challenged Childs's assertion that the venire list prepared by the court, and available to the parties, listed Hloubi's race as "unknown." During voir dire, Wilson was able to observe the prospective jurors and state her objections to the trial judge. Although Wilson submitted voir dire questions to the trial judge, and was given an opportunity to submit additional questions, she did not inquire in regards to nationality. We, therefore, conclude that prior to impanelment of the jury, Wilson could have discovered Hloubi's nationality through the exercise of due diligence. Southern Welding Works, 286 S.C. at 163, 332 S.E.2d at 105.

Moreover, in response to a voir dire question, Hloubi stated he could give both parties an impartial trial. Wilson does not indicate otherwise. Accordingly, we conclude Wilson has not demonstrated she was prejudiced by Hloubi's service on the jury. S.C.Code Ann. § 14-7-1140 (1976) as amended.

II.

Wilson alleges she was prejudiced by the trial court's failure to excuse several jurors for cause, and that the trial court erred by failing to permit additional voir dire of those members of the jury panel who had identified themselves as friends or former clients of Childs's attorneys. We disagree.

The trial judge's voir dire of the venire included all questions required by statute and submitted by the parties. At the beginning of voir dire, the trial judge excused one person at her own request because Childs had been her physician. Two prospective jurors stated they had been represented by Childs's attorneys, and eight stated they were personally acquainted with these attorneys. All indicated they were able to give both parties a fair and impartial trial. Of the twenty whose names were drawn by the clerk, one, who worked at the same hospital as Childs, was excused for cause. Seven others had been previously represented by or were acquainted with Childs's attorneys. The trial court refused Wilson's request to excuse these seven prospective jurors for cause or to conduct additional voir dire to determine the nature of their relationships with Childs's attorneys. One juror who had previously been represented by Childs's attorneys and another juror acquainted with the attorneys were seated on the trial jury.

Wilson concedes the decision to disqualify a juror for bias is within the discretion of the trial judge. Abofreka v. Alston Tobacco Co., 288 S.C. 122, 125, 341 S.E.2d 622, 624 (1986) (refusal to disqualify jurors who had been patients of plaintiff physician was within the trial court's discretion). She also concedes there is no absolute rule a juror is disqualified because of the juror's relationship with an attorney in the case. Thompson, 288 S.C. at 15, 339 S.E.2d at 506. However, she asserts these authorities and others involved at most two potential jurors with a disqualifying attribute. She also asserts the trial court is not bound to accept a juror's declaration of impartiality but must look to all circumstances to discern prejudice. Gray v. Bryant, 298 S.C. 285, 288, 379 S.E.2d 894, 896 (1989) (the trial court abused its discretion by refusing to grant a new trial when a juror had failed to disclose she was a patient of the defendant physician and she was predisposed against malpractice cases).

Because the jurors voluntarily disclosed their potentially disqualifying relationships and stated their ability to be impartial, there is sufficient evidence to support the trial judge's refusal to exclude these jurors for cause. Abofreka, 288 S.C. at 125, 341 S.E.2d at 624 (there is no abuse of discretion when the jurors have stated they are able to give the parties a fair trial); State v. Spann, 279 S.C. 399, 402, 308 S.E.2d 518, 520 (1983); State v. Thompson, 278 S.C. 1, 9-10, 292 S.E.2d 581, 586 (1982) (an appellate court will rely on the wisdom and judgment of the trial judge, who was able to observe the character and demeanor of the jurors, "unless the record firmly establishes an abuse of discretion."). Additionally, Wilson has identified no circumstances which suggest a juror was dishonest in his declaration of impartiality. See State v. Smart, 278 S.C. 515, 522, 299 S.E.2d 686, 690 (1982). Accordingly, we find no abuse of discretion.

We find no reason to apply a different rule when several jurors have disclosed a prior relationship with counsel, although the number of these jurors may exceed the four peremptory strikes allowed each party. The proper focus of our inquiry is whether the trial judge refused to exclude a juror...