Summary
In Southern Railway Co. v. Milan, 240 Ala. 333, 199 So. 711 (1940), the Court held that it was reversible error where the defendant, who unsuccessfully challenged the prospective juror for cause, was required, in order to eliminate the disqualified juror, to exercise a peremptory strike.
Summary of this case from Wallace v. Alabama Power Co.Opinion
8 Div. 78.
December 19, 1940.
Stokely, Scrivner, Dominick Smith, of Birmingham, Brown, Scott Dawson, of Scottsboro, and A. H. Carmichael, of Tuscumbia, for petitioner.
The relationship of the challenged juror to counsel for plaintiff disqualified him from service. Supreme Court Rule 45 cannot apply to this case. To leave a disqualified juror on the list and put defendant to the necessity of striking is not error without injury. Code 1923, § 8610; Danzey v. State, 126 Ala. 15, 28 So. 697; Black v. State, 205 Ala. 277, 87 So. 527; 9 R.C.L. 29, § 23; Gill v. State, 61 Ala. 169; Smith v. Pitts, 139 Ala. 152, 36 So. 20; Herndon v. State, 2 Ala. App. 118, 56 So. 85; O'Rear v. State, 188 Ala. 71, 66 So. 81, 35 C.J. 371. Charge 3, given for plaintiff, is bad as requiring a verdict for plaintiff whether or not negligence of defendant proximately caused the injury. Furthermore, a charge which requires the jury to refer to the pleading in order to arrive at the meaning of the charge is erroneous. Ala. G. S. R. Co. v. McWhorter, 156 Ala. 269, 47 So. 84; L. N. R. Co. v. Laney, 14 Ala. App. 287, 69 So. 993; B. R. L. P. Co. v. Fox, 174 Ala. 657, 56 So. 1013; Penn. Fire Ins. Co. v. Draper, 187 Ala. 103, 65 So. 923; Miller v. Johnson, 189 Ala. 354, 66 So. 486.
Proctor Snodgrass, of Scottsboro, for respondent.
While no injury resulted to defendant on account of the challenged juror included in the list having been stricken and not having participated in the trial, such juror was not in fact related to the attorney within the prohibited degree. 35 C.J. 318, note 92(a) (2); Clary v. State, 8 Ga. App. 92, 68 S.E. 615. There was no error in giving plaintiff's charge 3. Birmingham So. R. Co. v. Harrison, 203 Ala. 284, 82 So. 534. It was explanatory of a charge given for defendant.
The Court of Appeals in approving the action of the trial court in giving written charge "3" requested by the plaintiff rested the ruling upon the decision in Birmingham Southern R. Co. v. Harrison, 203 Ala. 284, 82 So. 534, upon plaintiff's given charge "3" in that case. Clearly enough, charge "3" in the Harrison case, supra, might well have been refused as bad in form by requiring a reference to the pleadings in the cause.
Charges so framed have been frequently condemned. Birmingham Ry. Light Power Co. v. Fox, 174 Ala. 657, 56 So. 1013; Pennsylvania Fire Ins. Co. v. Draper, 187 Ala. 103, 65 So. 923; Miller v. Johnson, 189 Ala. 354, 66 So. 486; Alabama Great Southern R. Co. v. McWhorter, 156 Ala. 269, 47 So. 84.
What is said in the Harrison case, supra, concerning the charge "3" there considered is not to be interpreted as an approval thereof in regard to these deficiencies and it is clearly indicated by the opinion that though the charge may be considered ambiguous, misleading and otherwise faulty in form, the action of the court in giving said charge did not constitute error to reverse.
But we think in the instant case the Court of Appeals has failed to note a distinguishing feature between the Harrison case and the one here considered. In discussing charge "3" in the Harrison case [ 203 Ala. 284, 82 So. 541], the opinion distinctly states "there was no plea of contributory negligence". But here there was a plea of contributory negligence and this constituted one of the issues in the cause. The charge here in question wholly ignores the issue of contributory negligence and should have been refused.
Nor are we prepared to agree that the error as to the disqualified juror Proctor was error without injury. A struck jury was demanded. Section 8663, Code 1923. Alternate strikes are allowed each party as to the jury list of twenty-four, the party demanding the jury commencing.
Defendant's objection to juror Proctor it is held, should have been sustained, but was overruled, and defendant was required, in order to eliminate the disqualified juror, to exercise a strike privilege, to so designate it. Defendant was accordingly deprived of a substantial right, and we do not consider that Supreme Court Rule 45 here applies. As said in Morris v. McClellan, 169 Ala. 90, 53 So. 155, 156, "When a struck jury is demanded, both sides are entitled to a list containing 24 fair and impartial jurors and should not be subjected to the peril of having a juror put upon them who is disqualified to sit as a juror in the case." See, also, O'Rear v. State, 188 Ala. 71, 66 So. 81.
For the errors indicated, the writ will be awarded and the judgment of the Court of Appeals reversed and the cause remanded to that court for further consideration.
Writ granted. Reversed and remanded.
All the Justices concur.