Opinion
No. 39407.
December 20, 1954.
1. Juries — fair and impartial — Court's duty.
Any party is entitled to a fair and impartial jury, and it is the duty of the Court to see that a competent, fair, and impartial jury is empaneled.
2. Juries — juror related to attorney — contingent interest — in outcome of case — challenge for cause.
In death action, where juror was related to attorney, who represented insurance company, which carried workmen's compensation liability for deceased's employer, and which was paying death benefits under Workmen's Compensation Act to deceased's widow and minor child, and which was entitled under statute to subrogation out of any recovery in death action for amounts paid out, and attorney filed petition for subrogation and for allowance of a fee, attorney was interested in outcome of case, and defendant's challenge for cause of such juror related to the attorney should have been sustained. Sec. 6998-36, Code 1942.
Headnotes as revised by Hall, J.
APPEAL from the circuit court of Lauderdale County; JESSE H. GRAHAM, Judge.
Snow Covington, Meridian, for appellant.
I. The peremptory instruction should have been granted. Aycock v. Burnett, 115 Miss. 485, 128 So. 522; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Cinderella Foods Division Stephens Industries v. Miller (Miss.), 52 So.2d 641; Coker v. Fifty-Two Taxi Service, 211 Miss. 820, 52 So.2d 356; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Daniel v. Livingstone, 168 Miss. 311, 150 So. 662; Fant v. Commercial Carriers, 210 Miss. 474, 49 So.2d 887; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Graves v. Hamilton (Miss.), 177 So. 360; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Gordon v. Lee, 208 Miss. 21, 43 So.2d 665; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; McMinn v. Lilly, 215 Miss. 193, 60 So.2d 603; Natchez Coca-Cola Bottling Co. v. Walston, 160 Miss. 173, 133 So. 677; Porter v. Nesmith, 124 Miss. 517, 87 So. 5; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Ripley v. Wilson, 140 Miss. 845, 105 So. 476; Ross v. West, 202 Miss. 3, 30 So.2d 310; Russell v. Williams, 108 Miss. 181, 150 So. 528; Snyder v. Campbell, 145 Miss. 289, 110 So. 678; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; White v. Weitz, 169 Miss. 102, 152 So. 484; Secs. 8183, 8215, Code 1942.
II. Proximate cause. Burnside v. Gulf Rfg. Co., 166 Miss. 460, 148 So. 219; Bufkin v. L. N. Ry. Co., 161 Miss. 524, 137 So. 517; Central Paving Constr. Co., Inc. v. McCaskin, 183 Miss. 814, 184 So. 464; Fant v. Commercial Carriers, supra; Frazier v. Hull, supra; Graves v. Hamilton, supra, 184 So. 57; Graves v. Johnson, supra; Hattiesburg Chero Cola Bottling Co. v. Price, 141 Miss. 892, 106 So. 771; Louisville N. Ry. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Mississippi City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192; Solomon v. Continental Baking Co., 172 Miss. 388, 160 So. 732; Stewart v. Kroger Groc. Co., 198 Miss. 371, 21 So. 912; Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850.
III. Erroneous instructions granted appellees. Capitol City Gas Co. v. Des Moines, 93 Iowa 547, 61 N.W. 1066; Mitchell v. Metts, 18 S.E.2d 406; People v. Kerkoff, 201 Mich. 100, 166 N.W. 944; Simmons v. Germany, 231 S.W.2d 778; Teche Lines v. Danforth, 195 Miss. 226, 12 So.2d 784; Wallace v. Kramer, 296 N.W. 838; White v. Vandevelde, 279 N.W. 899; Sec. 8215, Code 1942; 9 C.J. 1105, Note 77; 12 C.J.S. 805, Note 86.
IV. Error in refusing instructions requested by appellants. Belk v. Rosamond, supra; Coker v. Fifty-Two Taxi Service, supra; Collins Baking Co. v. Wicker, supra; Daniel v. Livingstone, supra; Evans Motor Freight v. Fleming, 184 Miss. 808, 185 So. 821; Flynt v. Fondren, supra; Frazier v. Hull, supra; Gordon v. Lee, supra; Graves v. Hamilton, supra; Graves v. Johnson, supra; Hattiesburg Coca-Cola Bottling Co. v. Pace, 141 Miss. 892, 106 So. 771; Hammond v. Morris, 156 Miss. 802, 126 So. 906; Murphy v. Willingham, 160 Miss. 94, 133 So. 213; Porter v. Nesmith, 124 Miss. 517, 87 So. 5; Rhodes v. Fullilove, supra; Ross v. West, supra; Russell v. Williams, supra; Snyder v. Campbell, supra; Solomon v. Continental Baking Co., supra; Teche Lines v. Danforth, supra; Terry v. Smylie, 161 Miss. 31, 136 So. 662; Ulmer v. Pistole, supra; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Sec. 8133, Code 1942.
V. Jury selection, error. Burbette v. State, 169 Miss. 94, 67 So. 853; Cashin v. Murphy, 138 Miss. 853, 103 So. 787; Coty v. State, 4 Miss. (3 Howe) 27; Davis v. Searcy, 79 Miss. 292, 30 So. 823; Dennis v. State, 96 Miss. 96, 50 So. 499; Dodd v. Kelly, 107 Miss. 471, 65 So. 561; Ferguson v. Brown, 75 Miss. 214, 21 So. 603; Ferriday v. Selser, 5 Miss. (4 Howe) 506; Garner v. State, 76 Miss. 515, 25 So. 363; Herbert v. Rutledge, 57 Miss. 43; Louisville N.O. T. Ry. Co. v. Mask, 64 Miss. 738, 2 So. 360; McCarty v. State, 26 Miss. (3 Cush.) 290; Mississippi Power Co. v. Stribling, 191 Miss. 832, 3 So.2d 807; Mississippi Public Service Co. v. Collier, 183 Miss. 271, 183 So. 379; Nelson v. Dickson, 63 Ga. 682, 36 Am. Rep. 128, 16 R.C.L. 259; Seals v. State, 208 Miss. 236, 44 So.2d 61; Sherman v. Wildberger, 125 Miss. 499, 37 So. 657; Walley v. Williams, 201 Miss. 84, 28 So.2d 579; Wilby Lbr. Co. v. Calhoun, 163 Miss. 81, 140 So. 680; Yazoo M.V.R.R. Co. v. Kelly, 102 Miss. 41, 58 So. 710; Yazoo M.V.R.R. Co. v. Kirk, 102 Miss. 41, 58 So. 710; Sec. 31, Constitution 1890; 24 Cyc. 275.
VI. Erroneous use of chart. Alexander v. Polk, 39 Miss. 737; Barkman v. Graham, 2 Miss. (1 Howe) 220; Carter v. Catchings (Miss.), 48 So. 515; C. St. L. M.O.R.R. Co. v. Covine, 61 Miss. 288; Gulf Research Develop. Co. v. Linder, 177 Miss. 123, 170 So. 646; Rawleigh v. Rosenberry, 174 Miss. 319, 164 So. 5; Tarkel v. Y. M.V.R.R. Co., 154 So. 351; Tucker v. Donald, 60 Miss. 460; Unger v. Grimsley, 138 Miss. 591, 103 So. 341; Vicksburg R. Power Mfg. Co. v. White, 82 Miss. 468, 34 So. 331; Vicksburg M.R.R. Co. v. O'Brien, 119 U.S. 99, 30 L.Ed. 299, 7 S.Ct. 118; Wheat v. Teche Lines, 181 Miss. 408, 179 So. 553; Wooten v. Bethea, 209 Miss. 374, 47 So.2d 158; Wooten v. M. O.R.R. Co., 80 Miss. 322, 42 So. 131.
VII. Improper conduct of case and improper argument. Avent v. Tucker, 188 Miss. 208, 194 So. 596; Avery v. Collins, 171 Miss. 636, 157 So. 695; Brush v. Laurendine, 168 Miss. 7, 150 So. 818; First Natl. Bank in Meridian v. Seward, 193 Miss. 565, 8 So.2d 236; Gulf M. O.R.R. Co. v. Wildy, 195 Miss. 345, 14 So.2d 340; Lancaster v. Lancaster, 213 Miss. 536, 57 So.2d 302; Louisville N.O. T. Ry. Co. v. Van Eaton (Miss.), 14 So. 267; Mars v. Hendon, 178 Miss. 157, 171 So. 880; Morse v. Phillips, 137 Miss. 452, 128 So. 336; New Orleans N.E.R.R. Co. v. Meyer, 197 Miss. 846, 20 So.2d 657; Odom v. Walker, 193 Miss. 862, 11 So.2d 452; Overing v. Skrmetta, 218 Miss. 648, 67 So.2d 606; Peterman v. Gary, 210 Miss. 439, 49 So.2d 828; Pickwick Greyhound Lines v. Silver, 155 Miss. 765, 125 So. 340; Savery v. Gray (Miss.), 51 So.2d 922; Shearron v. Shearron, 219 Miss. 27, 68 So.2d 71; Southern Ry. Co. v. McClelland, 80 Miss. 700, 32 So. 283; Ulmer v. Pistole, supra; Walley v. Williams, supra; Ward v. Mitchell, 216 Miss. 379, 62 So.2d 388; White's Market Groc. Co. v. Johns, 153 Miss. 860, 121 So. 825.
Miller Adams, Meridian, for appellee.
I. Reply to appellants' points I and II: Peremptory instructions should have been granted and proximate cause. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Central Paving Constr. Co. v. McCaskin, 183 Miss. 814, 184 So. 464; Cinderella Foods Division Stephens Industries v. Miller (Miss.), 52 So.2d 64; Coker v. Fifty-Two Taxi Service, 211 Miss. 820, 152 So.2d 356; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Graves v. Hamilton, 177 Miss. 303, 184 So. 57; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Gulf Rfg. Co. v. Brown, 196 Miss. 131, 16 So.2d 768; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 24; Solomon v. Continental Baking Co., 172 Miss. 388, 160 So. 233; Teche Lines v. Danforth, 195 Miss. 226, 12 So.2d 784; Secs. 8141, 8215, Code 1942.
II. Reply to appellants' point III: Erroneous instructions granted appellee. Mitchell v. Metts, 220 N.C. 793, 18 S.E.2d 406; Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So.2d 293.
III. Reply to appellants' point IV: Error in refusing instruction requested by appellants. Davidson v. Knight (Miss.), 29 So.2d 656; Pitts v. Miss. Power Light Co., 177 Miss. 288, 170 So. 820.
IV. Reply to appellants' point V: Error in jury selection. Donahue v. State, 142 Miss. 20, 107 So. 15; Long v. State, 163 Miss. 535, 141 So. 591.
V. Reply to appellants' point VI: Erroneous use of chart. Four-County Elec. Power Assn. v. Clardy, 221 Miss. 403, 73 So.2d 144.
VI. Reply to appellants' point VII: Improper conduct of case and improper argument. Brush v. Laurendine, 168 Miss. 7, 150 So. 818; Four-County Elec. Power Assn. v. Clardy, supra; McMinn v. Lilly, 215 Miss. 193, 60 So.2d 603; Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 817; Overing v. Skrmetta, 218 Miss. 648, 67 So.2d 606.
This is a suit for damages arising because of the death of Harvey Burgess, which occurred in a collision between a large transport truck which he was driving as an employee of Columbus Canning Company, loaded with canned dog food, and a large transport truck driven by Alvin A. Cantrell as an employee of Green Truck Lines, Incorporated. The collision took place on U.S. Highway 11 at Petal, Mississippi, at a point about one-half mile north of the city limits of Hattiesburg. The highway runs in a northerly and southerly direction. The road makes a sweeping curve about one-half mile in length and this curve negotiates a total angle of approximately 90 degrees. Both trucks were traveling south. The truck of appellants had entered this curve and according to the overwhelming weight of the testimony had stopped in the traveled portion of the highway. Deceased entered the curve behind appellant's truck and after he had made an effort to avoid the truck stopped in the highway the truck which deceased was driving crashed into the left rear of appellant's truck and caught fire and burned. There was a judgment in favor of the plaintiffs for $25,000.00, from which this appeal is prosecuted.
(Hn 1) Numerous errors are assigned but none of them have sufficient merit to warrant a discussion except one, which arose in the selection of the jury. On the voir dire examination the juror Buckwalter advised that he was related to one of the attorneys for plaintiff. Counsel for defendant, having exhausted their peremptory challenges, demanded the right to challenge this juror for cause and the trial judge refused that privilege, stating that he thought the juror was competent. It appears from the evidence taken outside the hearing of the jury that the attorney in question was representing the insurance company which carried the workmen's compensation liability for Columbus Canning Company and was paying death benefits according to the compensation act to the widow and minor child of the deceased. Under Section 30 of the Act the insurer was entitled to subrogation for the amounts paid out of any recovery, and its counsel was handling the matter on a contingent basis and was financially interested in the outcome of the case. In numerous cases we have held that any party is entitled to a fair and impartial jury. The identical question was presented in the case of Mississippi Power Co., et al. v. Stribling, 191 Miss. 832, 3 So.2d 807, wherein the Court said:
"In considering this question it should be borne in mind that the plaintiff's attorneys in this case were parties in interest, although not nominal parties. They had the same character of interest as the plaintiff in the case. Section 31 of the Constitution provides among other things that the right of trial by jury shall remain inviolate. It is the duty of the court to see that a competent, fair, and impartial jury is empaneled. McCarty v. State, 26 Miss. 299; Garner v. State, 76 Miss. 515, 25 So. 363; Davis v. Searcy, 79 Miss. 292, 30 So. 823; Ferriday v. Selser, 4 How. 506, 5 Miss. 506; Hubbard v. Rutledge, 57 Miss. 7; Louisville R. Co. v. Mask, 64 Miss. 738, 2 So. 360; Berbette v. State, 109 Miss. 94, 67 So. 853; Dennis v. State, 96 Miss. 96, 50 So. 499, 25 L.R.A. (N.S.) 36; Cody v. State, 3 How. 27; Mississippi Public Service Company v. Collier, 183 Miss. 271, 183 So. 379; Wilbe Lumber Co. v. Calhoun, 163 Miss. 80, 81, 140 So. 680. This action of the court was error. A lawyer's duties are not confined alone to serving his clients. He is an officer of the court and as such is called on to do and say whatever is necessary to promote the fair administration of justice."
In 50 C.J.S. page 958, Juries, Section 219, it is said: "In the absence of a statute to the contrary, it has generally been held that a juror is not disqualified because he is related to counsel in a civil action, except where such attorney is directly interested in the event of the action."
(Hn 2) The attorney for the insurance carrier participated throughout in the trial of this case and after the verdict filed a petition for subrogation in favor of his client and for the allowance of a fee. We think it is shown beyond question that he was interested in the outcome of this case and in fairness and justice the defendant should not have been compelled to accept a juror who was related to the attorney under these circumstances.
For the error indicated the judgment will be reversed and the cause remanded.
Reversed and remanded.
Roberds, P.J., and Kyle, Holmes and Gillespie, JJ., concur.