Missouri, Kansas & Texas Rly. Co. v. Munkers

11 Kan. 223

Opinion

The opinion of the court was delivered by

Brewer, J.:

1. Jurors; challege; statutory grounds. The question in this case arises on the overruling of a motion for a new trial.

Footnotes

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* The grounds of the motion are irregularity and misconduct of the jury. The facts are these: Two of the jurors when called and sworn as to their qualifications were asked whether they had or were interested in any action pending against the defendant, and answered in the negative. They were at the time subscribers to a fund for the support and prosecution of an action then pending in this court wherein certain citizens of Morris county were plaintiffs and the county board, clerk and treasurer of that county defendants.† Such action was prosecuted for the purpose of restraining said county officers from collecting any taxes for the payment of interest, and principal of certain bonds issued by said county to, and held by said railway company defendant herein. Neither the jurors nor the company were parties of record) and therefore the answers were strictly correct. But it is claimed that they were only technically so; that the company was the real party in interest, and that substantially the controversy was between certain citizens of Morris county, the two jurors among the number, and the company, the former seeking to avoid certain county obligations held by the latter. Under § 270 of the code, (Gen. Stat., 680,) it is ground of principal challenge that a juror “has an action pending between him and either party.” A statutory disqualification like this is not to be enlarged or diminished by construction. The language is plain, the meaning obvious. Its existence is absolute cause for challenge, and no inquiry is permissible into the condition of the juror’s mind, or its effect upon his feelings or prejudices. His interest in such action may be slight; he may be only a nominal party; he may be utterly indifferent as to its results; he may be the best man in the community, the most discriminating in his judgments, the most impartial between the litigants, yet, if this statutory disqualification attaches, a principal challenge must be sustained. Because it is thus peremptory and absolute, it ought not to be enlarged by judicial construction. An actual unfitness of any juror can be shown on a challenge for cause, and, when shown, will remove him from the panel. It follows from these considerations that no ground for principal challenge existed, and that if one had been made it ought to have been overruled.

2. Challenge for cause. 3. Setting aside verdict. Partiality of juror. Ought a challenge for cause to have been sustained ? There is no pretense that the facts indicate in the jurors any interest or feeling in the present contest, or any friendship or partiality for the plaintiffs. The only possible claim is, that the7 show a hostility, a prejudice, or an unfriendly feeling to the defendant. The sole evidence of this unfriendliness is the fact that they question the validity of certain obligations issued by the county to the defendant, and are contributing to the expense of legal proceedings to test that validity. Impartiality of jurors is essential to the due administration of justice. They should be, in the language of the books, omni exeeptione majares; and we should be unwilling by any decision to weaken the safeguard thrown around the jury-box. Where the trial judge after an examination of a juror is in doubt whether he be impartial, or biased and prejudiced, he ought to give the jury-box and the parties the benefit of the doubt, and excuse the juror. But when the trial is complete and the verdict returned, the verdict ought not to be disturbed by reason of the possibility of prejudice in the minds of one or two of the jury towards the losing party. The proof of prejudice should be clear, otherwise great injustice might be done to the successful party as well as to the juror. Indeed, it has been decided in some cases, and said by some judges to have been the rule at common law, that no verdict should be set aside on account of the disqualification of a juror which existed at the time he was sworn; that if he was then disqualified, and the fact was not elicited on his voir dire, and he was sworn in the case, no advantage could thereafter be taken thereof, though court, counsel, and parties were all ignorant of this disqualification. Gillespie v. The State, 8 Yerger, 507; Magnes v. Stewart, 2 Cold., 309. We do not wish to be understood as endorsing this statement as broadly as it is made. We simply cite it as showing to what extent courts have gone in this direction. It is enough for us now to decide, that before a court is justified in setting aside a verdict, on the ground of a disqualification of one of the jurors which existed at the time he was sworn, the proof of that disqualification must be clear. We do not think the facts in this case are sufficient evidence of prejudice, or unfriendly feeling, toward the defendant to justify the setting aside of the verdict. Hilliard on New Trials, 155, § 66; State v. Wilson, 8 Iowa, 407; Commonwealth v. O’Neil, 6 Gray, 343; Moore v. Cass, 10 Kas., 288.

4. Examination of jurors. But it is claimed that the answer of the jurors was untrue, or evasive — that it misled the counsel and prevented further inquiry and formal challenge, and that this amounted to misconduct or irregularity of the jurors which demands a new trial. The answer was true, literally true. Counsel for the company on this point ingeniously says: “But it máy be claimed that their answer was strictly true, inasmuch as that action was not in form against the plaintiff, in error. This, to my judgment, makes the matter really worse for them. They evidently knew the object of the question, and to what point it was directed; that counsel for the company was inquiring as to any interest they might have in the action pending against the county authorities, in which the company was interested. Upon this theory they were clearly guilty of evasion, and substantially of falsehood.” We do not understand how it can be said that “they evidently knew the object of the question,” if by that is meant that they knew something more was intended than was expressed by the terms of the question. We to-day are unable to say, from anything before us, that the counsel for the company at the time had any more in his thought than he expressed in his question, or desired any further informa tion than he actually received. All beyond is mere matter of speculation and guess-work. Before we could affirm misconduct of the jurors we should be compelled to guess that counsel intended more by his question than he expressed, that the jurors knew what he intended as well as what he expressed, and intending to deceive answered only what was expressed and left unanswered what was intended. That is an exercise in metaphysics which is outside the function of any judicial tribunal. We think the motion for a new trial was properly overruled. Counsel has discussed in his brief some questions as to the effect of the mandamus heretofore issued by this court on the rights of his client. We think the decision in the mandamus case disposed of all those questions. The judgment of the district court will be affirmed.

All the Justices concurring.

See Munkers v. Watson, Judge, 9 Kas., 668.

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Morris, et al., v. Morris County, 7 Kas:, 576.