BORDER v. CARRABINE

Oklahoma Supreme Court1912-01-16No. No. 1407

30 Okla. 740120 P. 1087

Summary · law.co

Holding. The judgment is reversed and the case is remanded for a new trial because the trial court erred in instructing the jury that nine jurors could render a verdict when territorial law required unanimity.

Border brought an action in probate court in Greer County, Oklahoma Territory, seeking damages. The case proceeded to district court, where a jury returned a verdict in favor of Border for $100 plus interest at 7% per annum from May 1, 1908. Border appeals, raising eight assignments of error.

The central issues concerned jury composition and verdict requirements. One juror disclosed that he employed one of the plaintiff's attorneys in other pending matters and also employed one of the defendant's attorneys in other pending matters, and that the plaintiff was a regular customer at his store. The trial court overruled the defendant's challenge for cause based on this disclosure. Additionally, the trial court instructed the jury that nine jurors could render a verdict, and the verdict was not unanimous but represented the agreement of nine jurors only.

The appellate court determined that under territorial law in effect when the case was filed, a unanimous jury verdict was required. The instruction permitting a nine-juror verdict therefore constituted reversible error. The court did not disturb the trial court's decision to seat the juror, finding that the disclosed relationships did not necessarily disqualify him, particularly given that both counsel had connections to the juror.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a juror's employment of counsel for both parties disqualifies him for cause
Whether non-unanimous jury verdicts are permissible under Oklahoma territorial law
Standard of review for trial court's denial of challenge for cause

Procedural posture

The case was brought in probate court during the Oklahoma Territory period, appealed to district court where judgment was entered for plaintiff, and is now before the territorial supreme court on appeal by defendant.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Opinion by

ROSSER, C.

This action was brought in the probate court of Greer county, prior to the admission of the state of Oklahoma into the Union. From the judgment of the probate court an appeal was taken to the district court of Greer county. In the district court there was a verdict and judgment fbr plaintiff for the sum of $100, with interest from the 1st of May, 1908, at the rate of 7 per cent, per annum, and the case is now brought here for review.

There are eight assignments of error, but it will not be necessary to notice all of them. The record shows that W. H. Jacobs, one of the jurors that tried the case, when examined upon his voir dire, stated that T. P. Clay, the attorney for the plaintiff in the case, was his regularly employed attorney, and was his attorney in several matters still pending. He also stated that A. M. Stewart, one of the attorneys for the defendant, was employed by him as attorney in matters still pending. I-Ie also testified that the plaintiff was a regular customer at his store. The defendant challenged the juror for cause, and assigned as a reason for said challenge his admission that T. P. Clay was his regular attorney, employed by him in matters still pending, and also that plaintiff was one of his regular customers. The court overruled the challenge, and this action of the court is assigned as error.

The matters stated by the juror do not come within any of the specific causes for challenge, as set out in section 5789 of Comp. Laws 1909. That section provides, in addition to the grounds of challenge enumerated, that:

“Any petit juror .who shall be returned upon the trial of any of the causes hereinbefore specified, against whom no principal cause of challenge can be alleged, may nevertheless be challenged on suspicion of prejudice against, or partiality for, either party, or for want of competent knowledge of the English language, or any other cause that may render him at the time an unsuitable juror, and the validity of said challenge shall be determined by the court.”

. This latter provision was what was known in the old books as “challenge to the favor,” and was properly triable by the court, and his decision is not reviewable, except it clearly appears that he has abused his discretion. It cannot be said, upon the statement made by the juror, that it was erroneous for the court to overrule the challenge.

The mere fact that a juror has employed one of the counsel in the case as his attorney in other matters will not necessarily disqualify him as a juror, more especially where it appears, as it did in this case, that the counsel upon the challenging side was also employed by him. 24 Cyc. 350.

The court instructed the jury, over the objection and exception of the defendant, that nine of the jury concurring could render a verdict in the case, and the verdict was not unanimous, but was, in fact, rendered by nine jurors. This case was pending at the time of the admission of the state into the Union, and the procedure was governed by the law in force in the territory of Oklahoma prior to statehood. As the law in the territory of Oklahoma required a unanimous verdict of the jury, it was error to instruct that less than the whole number could render a verdict. This question has already been decided by this court in the case of Pacific Mutual Life Insurance Co. v. Adams, 27 Okla. 496, 112 Pac. 1026; Kerfoot-Bell Co. v. Kerfoot, infra, 118 Pac. 367.

It follows that the case must be reversed, and the cause remapded for a new trial.

By the Court: It is so ordered.

All the Justices concur.