Pearce v. Quincy Mining Co.

Grant, J.

(after stating the facts). 1. The first error assigned is the refusal of the court to excuse a juror who was challenged by the plaintiff because he was an employé of the defendant. We are cited to no case in this court which decides the question. Counsel for defendant rely on Goodrich v. Burdick, 26 Mich. 39 , where the defendant’s clerk was excused by the court. It was there said, the court speaking through Christiancy, C. J.:

“Though it might not have been erroneous for the court to have allowed Stewart, the clerk of the defendant, to sit as a juror, no other cause being shown against him, there was no error in rejecting him for this cause, and we think his rejection judicious and proper.”

Probably the reason that the question has not before been raised is because courts usually excuse a juror who occupies a business relation to either of the parties liti *116 gant. The question, however, has frequently arisen and been decided in other jurisdictions, and the cases, which are numerous, almost, if not quite, universally hold that such a person is incompetent to sit as a juror. 24 Cyc. p. 276; 17 Am. & Eng. Enc. Law (2d Ed.), p. 1127. Numerous cases are there cited. Jurors should be strictly impartial. Undoubtedly, many employes would be. Many employers might wish them to be. But a verdict in favor of the employer would not be satisfactory to the opposite party. The verdict would be subject to criticism. It would place the juror in an unpleasant position. It is a wise policy which prohibits such persons sitting as jurors. We think the law disqualifies them.

The objectionable 'juror, however, was peremptorily challenged by the plaintiff, and no claim is made that a perfectly impartial jury was not afterwards obtained. The sole ground, therefore, for reversing the case, is that the plaintiff exhausted all his peremptory challenges, and, if this juror had been excused for cause, he might have had one more peremptory challenge. There are decisions for reversing cases under such circumstances. Among them is one by this court. Theisen v. Johns, 72 Mich. 285 . The question was disposed of by the statement that:

“ It will not do to say that this error was cured by the fact that counsel afterwards challenged the jury peremptorily, as it appears from the record that counsel upon both sides exhausted their peremptory challenges. There may have been others upon the jury whom counsel might desire to challenge peremptorily, and have been unable to excuse by reason of having exhausted his challenges.”

We think that, when the parties have obtained a competent and impartial jury, there is no good reason in setting that verdict aside and granting a new trial, because the judge erred in retaining upon the jury one who was in fact disqualified, but who was afterwards peremptorily challenged. An impartial jury is all that a party is entitled to, and when he has obtained that he has no valid *117 ground for complaint. Where a qualified juror was ex-' cused, this court said:

“ So long as an impartial jury is obtained, neither party has a right to complain of this course by the court.” Atlas Mining Co. v. Johnston, 23 Mich. 36 .

See* also, Luebe v. Thorpe, 94 Mich. 268 . We therefore overrule that case upon this point.

2. The court, as requested by the plaintiff, stated to them fully the theory of the plaintiff’s case. This theory was repeated in various forms, one of which will be found in the excerpt from the charge, printed in the margin. 1 After giving these requests, the circuit judge said to the jury that they must be satisfied by a fair preponderance of the evidence of two propositions: (1) that the defendant was guilty of negligence; and (2) that the plaintiff’s intestate was not guilty of contributory negligence; that the duty to warn the deceased was imposed upon the defendant, but, if the deceased knew of and appreciated the danger, that was sufficient; that if the defendant was guilty of negligence, and the deceased used the care that an ordinary, prudent, and intelligent person of his age, knowledge, and experience would use, plaintiff was entitled to recover. He also instructed them that liability could not be based upon sympathy. The last instruction appears to have been prompted by the remarks of counsel to the jury. It is these remarks, in summing up the case to the jury, of which plaintiff’s counsel complain. We find no error in them. The propositions were all correct, and were all applicable to the case. •

*118 3. Plaintiff made a motion for a new trial upon the grounds: (a) That the verdict was against the weight of the evidence; (6) that the court erred in his instructions to the jury; (c) because an employe of the defendant talked with one of the jurors during the trial, for the purpose of influencing him. The motion was overruled, and, we think, very properly. The verdict was not against the weight of the evidence. The affidavit upon which the talk with a juror is based was denied by the employé and by the juror. Some other errors are assigned which have had full consideration. They are unimportant, and it is sufficient to say that they are without merit.

The judgment is affirmed.

McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.

“If you find from the evidence that deceased was young and inexperienced, and that the place where he was working when killed was attended by danger, and that the danger was known, or should have been known, to the defendant, and was not fully known to deceased, and was not fully apparent to a person of his age and experience, or was not fully appreciated by him, and that his incompetency to judge of such danger and fully appreciate the same was known, or should have been known, to the defendant, then the burden of proof is on the defendant to prove to your satisfaction by a preponderance of evidence that it did fully inform, warn, and instruct deceased concerning such danger, so that he might have fully understood and appreciated the same and have exercised care in proportion to such danger.’’