
    Abigail De Puy, App’lt, v. William Quinn, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    1. Jurors—Civil damage act.
    The fact that jurors entertain a prejudice against the business of selling liquor does not disqualify them from sitting in an action under the civil damage act, so long as they testify that they are indifferent between the parties and can give an impartial verdict according to the evidence, irrespective of what they think of the business.
    2. Same.
    The exclusion of jurors on that ground is reversible error, although a competent jury is afterwards obtained. (Macomber, J., dissents.)
    3. Same—Estoppel.
    The plaintiff in such a case is not estopped from objecting to such ex" elusion by the fact that he had previously obtained a ruling that jurors who entertained a prejudice against the civil damage act were disqualified from sitting. (Macomber, J., dissents.)
    Appeal from a judgment entered in the Cayuga county clerk’s office in favor of the defendant, and from an order denying a motion for a new trial on the minutes.
    
      F. D. Wright, for app’lt; Lyon & Pierce, for resp’t.
   Lewis, J.

This action was brought under the civil damage act to recover damages against defendant for the loss of the means of support of the plaintiff caused by the death of her son while intoxicated, which intoxication the plaintiff alleged was caused in whole or in part by intoxicating liquor furnished him by defendant.

The only question which it is necessary to examine upon this appeal is the one raised by the plaintiff’s exception to the ruling of the trial justice sustaining the defendant’s challenge to the proposed jurors, George C. Graham and W. F. Tuller, who were members of the panel of jurors in attendance upon the court.

Graham,- when called, was challenged by defendant, and the following proceedings were had: he was sworn as to his competency as a juror, and was examined by defendant’s counsel, and testified that he did not think much ‘of the business of selling liquor; that he had a prejudice against it; and that were he to sit as a juror in the case he would go into the box with a prejudice against the business. He further testified that he had no prejudice against the defendant; that he could sit and hear the evidence, and give an impartial verdict according to the evidence in the case irrespective of what he thought of the business itself. The trial j ustice allowed the challenge, and excused the juror, and the plaintiff excepted.

Like proceedings were had, and testimony to the same purport was given when Tuller was called, and there was a like ruling by the court, and an exception by the plaintiff.

The parties exhausted their peremptory challenges. A panel of jurors was secured; the trial proceeded and resulted in a verdict for the defendant.

The trial judge was required to decide the question of fact: “Were the proposed jurors indifferent between the parties.” That question § 1180 of the Code provides must be tried and determined by the court only. Either party may take an exception and the determination of the court is reviewed in the same manner as when an issue of fact presented by the pleadings is tried by the court, and the case is required to contain the matters necessary to present the facts upon which the determination excepted to was based. In empanelling jurors a liberal discretion is vested in the trial court. Such discretion conduces to the just and correct administration of law in the trial of causes by jury. Yet litgants are entitled to the benefit of the provisions of law governing the empanelling of juries.

Section 1166 of the Code of Civil Procedure provides that the twelve persons who appear as their names are drawn and called and are proved as indifferent between the parties and not discharged or excused must be sworn to constitute a jury to try the ■ issue.

The court cannot arbitrarily excuse a proposed juror who is in all respects competent to sit. If the facts presented fail to prove that Graham and Tuller were disqualified to sit as jurors in the case it was error to exclude them ; and it was so held in the case of Hildreth, v. The City of Troy, 101 N. Y., 234.

The ground of challenge in that case was that the juror was incompetent because he was a resident and taxpayer in the city of Troy.

The challenge was sustained. The charter of the city provided tho t the grounds mentioned did not disqualify a person as a juror in a case in which the city was defendant; and Justice Andrews in his opinion, says: “Jurors differ in intelligence, judgment and fitness to act as jurors. It is, we think, the legal right of a party to have the jury selected from the competent names in the jury box, and that the range of selection shall not be limited by excluding, without cause, competent jurors from the panel.

“ The law prescribes the qualifications of jurors. The court cannot add to or detract from them. It cannot itself select the jury directly or indirectly. It cannot in its discretion or capriciously set'aside jurors as incompetent whom the law declares are competent, and thus limit the selection of the jury to jurors whose names may be left. If this is done a legal right is violated for which an appellate court will give redress.”

It was a question of law that was presented for the decision of that court in the case of Hildreth v. The City of Troy. In the case at bar the trial judge was required to decide the question of fact, “ Was the proposed juror indifferent between the parties.” The question to be litigated in this case was, did the defendant sell or furnish to the deceased liquor, which wholly, or in part, caused his intoxication.

The propriety or morality of selling liquor was not in question any more than were the political or religious views of the defendant. The jurors stated they had no prejudice against the defendant; that it would not require any greater evidence, in a case tried before them, when one party was engaged in that business, than if he was engaged in any other business; that they could sit and hear the evidence and give an impartial verdict, according to the evidence in the case, irrespective of what they thought of the business of selling liquor. They were, so they testified, indifferent between the parties. Had one of the parties been a lawyer, minister, or dealer in stocks, jurors could be found having a prejudice against their business, and yet in a litigation where one of them was a party it would scarcely be claimed that a juror who entertained such prejudice was disqualified for that reason to sit in the case.

A very large proportion of persons who have arrived at their majority entertain opinions as to the propriety of selling liquor to be used as a beverage. The majority of them undoubtedly think it does not tend to elevate and improve mankind, and such an opinion is not confined to the classes not engaged in the business. Substantially every one has an opinion upon the subject. They either think it is, or is not, a beneficial calling. If one who, like Graham, does not think much of the business, is adjudged incompetent to sit, a person entertaining an opposite opinion ought also to be held incompetent, and jurors would necessarily have to be selected from those persons who had never given the subject sufficient reflection to have formed an opinion, if such could be found possessing the qualifications required by § 1126 of the Code, “ in the possession of his natural faculties, intelligent, of sound mind, good character, and able to read and write the English language understandingly.”

It does not seem to us that the fact that Graham and Tuller entertained a prejudice against the business of selling liquor disqualified them to sit as jurors in the case so long as they testified they were indifferent between the parties, and could sit and hear the evidence and give an impartial verdict according to the evidence in the case, irrespective of what they thought of the business. It is suggested that the trial court having the juror before him had a better opportunity to judge of the qualifications of the juror than the appellate court; that he saw the juror, his manner of testifying and his appearance generally.

We must, however, assume that no unfavorable impressions were thus obtained by the trial court, as the case fails to so state. There is the usual certificate in the case that it contains all the evidence and proceedings in the action.

If their manner and appearance afforded to the trial court evidence of their unfitness, that fact should have been stated in the case, and would be decisive of the question before us. To go outside of the case and indulge in speculations as to what might have influenced the'mind of the trial court would render nugatory the provisions of the Code providing for the review of the rulings of the trial court on such questions.

The respondent further suggests that the appellant had induced the trial court to hold that a juror was disqualified if he was prejudiced against the civil damage act, and that he had thereby established a precedent and should be held to be estopped from objecting to the enforcement of the rule against him.

It may well be doubted if the questions were alike in principle. The jury when empanelled became an important part of the court which was to be asked to enforce the law if it had been violated, and if a juror who is opposed to capital punishment is disqualified to sit as a juror on the trial of a person charged with a crime where the punishment is death, it might perhaps be correctly held that a person entertaining a prejudice against the act in question is disqualified as a juror in such a case; but we do not think the doctrine of estoppel can be held to apply to such a question.

The evidence, we think, failed to show that Graham and Tuller were incompetent to sit as jurors, and that it was error to exclude them for which the judgment should be reversed.

The judgment and order denying a new trial should be reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., concurs.

Macomber, J.

(dissenting)—The motion for a new trial, the denial of which is claimed to be an error, was made upon the following grounds:

(1) That the challenge interposed by the defendant to each of two jurors was erroneously sustained by the court.

(2) That the verdict was against the weight of the evidence and should have been for the plaintiff.

It is quite clear that the jury must have rejected the testimony of the plaintiff’s two witnesses, Dorr Baker and Simeon Baker, as wholly unworthy of credit and insufficient to support a verdict. The character of these witnesses for truth was necessarily before the jury, and the latter’s determination thereof ought not to be disturbed by the court; for it is impossible to discover in the verdict any evidence that the jury was actuated by prejudice or any other unworthy motive. The account which these two witnesses respectively give of themselves and of their connection with the case and its incidents was well calculated to "produce upon the mind of the persons passing upon the question of fact a keen distrust of them and a lively apprehension that a verdict could not be safely rendered upon their testimony. This may, indeed, be a misfortune to the plaintiff; jet the defendant ought not to be held in damages except upon evidence given by witnesses worthy of belief. This part of the case, therefore, is easily disposed of upon reading the testimony of the witnesses upon whom the plaintiff’s case almost wholly depended, and which the jury had a right to discredit.

But there is a question more elaborately discussed in the brief of the learned counsel for the appellant, which merits serious attention. The action was brought under the civil damage act, chap. 646, Laws of 1873, for the loss to the plaintiff of the means of support afforded by her son, who was her main reliance. The son was drowned April 20, 1889, in the raceway leading from Owasco lake to the Auburn Water Works Company, caused, as was alleged, by the intoxication produced, in whole or in part, by intoxicating liquor furnished to the deceased by the defendant.

The peremptory challenges to the jurors allowed by the statute at that time (two in number), bad been exhausted; but whether before or after the challenges made to the two jurors in question does not distinctly appear in the case. Two jurors, Graham and Tuller, were called and challenged by the defendant, which challenges were sustained by the court. The questions and answers of the two jurors and the objections made respectively to them were so nearly alike that they may, for the purposes of this review, be grouped together. They were respectively asked whether they had a prejudice against the liquor business. Bach answered that he had, and that be would carry the prejudice against that business into the jury box; and it was claimed by the defendant that such prejudice would influence his verdict.

Graham answered as follows:

“ Q. So that if you were to sit as a juror in this case you would go into the box with a prejudice against the business, would you. not? A. I would, against the business ; yes, sir.”

On examination by the plaintiff’s counsel he stated, that he had no prejudice against the defendant, and that he could sit and hear the evidence and give an impartial verdict according to the evidence, irrespective of what he thought of the business. The juror Tuller further answered as follows:

“ Q. So that if you were to sit as a juror in this case you would go into the box with that prejudice existing in your mind? A. Yes, sir; I think I would.”

This juror also said that he had no prejudice against the defendant, and that he could decide impartially upon the evidence. The challenge to each juror was sustained by the court and an exception was taken, and upon these two exceptions the appellant mainly relies for a reversal of the judgment.

The first clause of § 1166 of the Code of Civil Procedure provides as follows: “ The first twelve persons who appear as their names are drawn and called, and approved as indifferent between the parties and not discharged or excused, must be sworn and constitute the jury to try the issue.” By § 1180, “An objection to the qualifications of a juror is available only upon a challenge. A challenge of a juror, or a challenge to the panel or array of jurors, must be tried and determined by the court only. Either party may except to the determination, and it may be reviewed, upon a question of fact, or a question of law, or both, as where an issue of fact presented by the pleadings is tried by the court; except that where one or more exceptions are taken to the rulings of the court, made after the jury is empanelled, an exception to the determination of a challenge must be heard at the same time; and the case must contain the matters necessary to present it, upon the facts, or the law, or both.”

Had the learned justice presiding at the trial ruled otherwise than as he did upon this question (assuming in passing that the challenge was for principal cause), such ruling clearly enough would not have been disturbed upon any review of it; for we are of the opinion that the objection of a juror to the business in which the defendant was shown to be engaged, namely, that of retail liquor selling, was not a legal disqualification on a challenge for principal cause, and that so long as it appeared that the juror could hear the evidence and render a dispassionate verdict he was competent within the meaning of the statute. But it by no means follows that the ruling actually made by the learned justice must result in a reversal of the judgment. The challenge was not for principal cause, as it seems to me, but to the favor and for actual bias. Had the challenge been placed upon the ground that the juror was not competent to sit, and was actually disqualified by the terms of the statute by reason of entertaining such prejudice, the ruling of the learned judge would have presented clearly a legal error; that is to say, an error in law, and not merely an erroneous conclusion upon a question of fact.

These two sections of the statute above quoted must be considered and construed together. Taken as a whole they properly give to the trial judge an ample discretion. By § 1180 the decision is reviewable according to the nature of the objection, either as a question of law or a question of fact. Where, however, the question, as in this case, is undertaken to be reviewed by appeal as arising upon a question of fact; that is to say, where the conclusion of the learned trial judge as to the competency of the juror under a challenge for actual bias is drawn in question, then recourse must be had to the provision of § 1166. Under this section each of the jurors must be approved as indifferent between the parties. The judge at the trial had means of accurately determining the capacity and integrity of the jurors, which a court, on appeal, can not possibly possess from an inspection of the printed record alone. The jurors’ mode of answering questions, intelligence, appearance, together with their apparent candor, general character, and the many little things -which appear on the voir dire, but which are incapable of being reproduced in print, were elements which necessarily entered into the final determination of the trial judge in his selection of the twelve men. So long as it appears clearly, as it does in the case before us, that twelve indifferent and impartial men were actually empanelled to try the case, the appellate branch of the supreme court should be lath to reverse the results of the trial simply upon the ground that the members of that court might have, come to a different conclusion, acting solely upon the printed testimony, from the one arrived at by the trial judge. From the nature of the case, much latitude must be given to the judge at the circuit. Were the obverse of the question presented, namely, a juror retained by the court who ought to have been excluded, and a case thus presented which would raise a suspicion of a tainted verdict, an entirely different question would be presented.

The conclusion of the justice upon the question of the actual bias of the jurors ought not to be disturbed unless the party appealing has been prejudiced. It cannot be said that a party is prejudiced in law by a ruling of the court that excluded from a panel of jurors persons that were hostile and opposed to the business carried on by his opponent. Maretzek v. Cauldwell, 5 Rob., 660. In the case of criminal actions, the expression or formation of an opinion or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufficient ground for a challenge for actual bias to any person otherwise legally qualified, if he declare on oath that he believes such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied that he does not entertain such a present opinion or impression as would influence his verdict.

In analogy to this statute for the trial of criminal cases, where the general provision for the empanelling of a jury is the same as in civil actions, why should not the trial court be left untrammeled in its effort to exclude from the jury box every person having an actual bias against the business of one of the parties when such occupation is neither malum in se nor malum prohibitum ? While, therefore, the rejection of a competent juror may be deemed ground of error, although the jurors who actually try the case are competent, as was held in the case of Hildreth v. City of Troy, 101 N. Y., 234, where the error of the trial judge was one of law holding that a juror was incompetent by reason of being an inhabitant of the city which was the defendant, yet, where the objection goes to actual bias and the determination thereof was at most but an error of fact, and that, too, in an effort to obtain an impartial jury; and where there appeal’s to be no objection to the twelve jurors actually empanelled, I am of the opinion that the error is unimportant and not prejudicial to any legal rights of the appellant, and that, consequently, there should be no review of such determination except in the case of abuse, or an arbitrary use of power by the trial judge, of which there is not the slightest suggestion in the case before us.

There is another reason why the appellant ought not to be allowed to prevail upon this appeal, and that is, that prior to the challenge made to the jurors, Graham and Tuller, the plaintiff’s counsel had examined three jurors who had stated in answer to his questions that they were prejudiced against the enforcement of the civil damage act; and thereupon the counsel asked for and obtained a ruling of the court that such jurors were not competent to sit The plaintiff, therefore, appears in the attitude of a person who had, through great diligence of counsel, obtained a decision of the trial court upon the qualification of jurors under this statute (assuming that such challenge was for principal cause), and he ought not now to be heard to complain if, after procuring such ruling, the court felt bound to be entirely consistent, and applied the correlative proposition in favor of the defendant’s contention, namely, that prejudice against the business of liquor selling was also a disqualification. If one proposition is correct, the other must be also.

The judgment and order appealed from should be affirmed.

Judgment and order reversed and new trial granted, with costs to abide event.  