LIVINGSTON, Chief Justice.
This is an appeal from a judgment setting aside a jury verdict and granting to the appellee a new trial in his suit for damages against the appellant and one Vera B. McCoy. Boykin, a pedestrian, was injured as a result of a collision between the automobiles driven by Kenneth M. Hayes and Vera B. McCoy. There was but one count in his complaint charging negligence, and upon the trial of the cause the verdict was rendered in favor of Boykin and against the defendant, Vera B. McCoy, in a substantial amount. The jury found in favor of the defendant, Kenneth M. Hayes. Following the jury verdict, the judgment was rendered in favor of Boykin and against Vera B. McCoy in accordance with the jury verdict and in favor of defendant Hayes.
Thereafter, appellee filed a motion for a new trial as to the defendant Hayes, consisting
Ground 6 of the appellee's motion for a new trial reads as follows:
It affirmatively appears that on the voir dire examination of the jurors the following questions were propounded:
"I would like to know if any of you gentlemen are closely acquainted with Mr. Parsons or Mr. Malcolm Wheeler, or Mr. Ed Rose of the firm of Parsons, Wheeler & Rose?
"No special acquaintance with any member of that firm?"
No juror responded in any manner to these questions.
After a hearing, the trial court in its order granting the new trial observed:
The affidavits show that the juror Siniard, formerly a police officer, had previously been involved in a controversy with a negro which led to, or resulted in, his discharge from the City of Birmingham as a police officer. This followed a trial in a charge against a negro by the name of Patrick, who was defended by Mr. Malcolm Wheeler, an attorney, and the same attorney referred to in questions asked all the jurors.
Appellant earnestly insists that the trial court in its application of the rule announced in Leach v. State, 31 Ala.App. 390, 18 So.2d 285, erred because, as appellant contends, the holding of the Leach case repeats and applies the principle, that, in order for the undisclosed information to warrant the granting of a new trial, its nature must be such that the withholding thereof by the juror resulted in probable prejudice or injury to the complaining party.
This reasoning was employed by Mr. Justice Lawson in his dissenting opinion in Birmingham Electric Co. v. Yoast, 256 Ala. 673, 57 So.2d 103, 30 A.L.R.2d 907. But the majority of the court in that case refused to disturb the ruling of the trial court wherein a new trial was granted because of the disqualification of a juror even though the plaintiff had recovered a money judgment and although the trial court had expressly refused to set aside the verdict
In Beasley v. State, 39 Ala.App. 182, 96 So.2d 693, many of the authorities of this and other jurisdictions dealing with the disqualifications of jurors are analyzed. Judge Cates, in discussing the decision of Mr. Justice Lawson in Rosenbush Feed Co. v. Garrison, 251 Ala. 245, 37 So.2d 106, 109, quoted from that case as follows [39 Ala.App. 182, 96 So.2d 700]:
Judge Cates concluded as follows:
Then, too, this court, the Court of Appeals, in reviewing the action of the trial court in the Leach case, supra, used the very plain and expressive language as follows [31 Ala.App. 390, 18 So.2d 287]:
Appellant in a more direct manner advances the argument for reversal upon the theory that since the jury, including the juror Siniard, returned a verdict in favor of the plaintiff against one of the defendants in a very substantial amount, that this fact affirmatively shows that the plaintiff was not prejudiced at the trial of the cause, and that the juror Siniard could not have been biased against the plaintiff or his attorney. Here again the appellant would have us be governed by the results of the trial rather than to follow our pronouncement that our Code section (Code 1940, Title 30, Sec. 52) has the manifest purpose of the disclosure by every juror as to all material qualifications in order that the parties may exercise advisedly their peremptory challenges. Leach v. State, supra; Birmingham Electric Co. v. Yoast, supra.
In Brown v. Woolverton, 219 Ala. 112, 121 So. 404, 406, 64 A.L.R. 640, this court, speaking through the late Justice Foster, said:
In the instant case, the disqualification of the juror here involved was propter affectum,—as for suspicion of bias or partiality—and the trial court after the hearing on the motion for a new trial stated in its order:
As stated, the trial court has found as a matter of fact after a hearing that had the juror Siniard responded to the question propounded, his response would have revealed the information to counsel for the plaintiff whereby he could have exercised advisedly his peremptory challenges, and thus availed himself of one of the manifest purposes of Sec. 52, Title 30, Code of Alabama 1940.
It is upon this principle that appellee claims there was no reversible error in the action of the trial court in granting the motion for a new trial, since his act in that respect, as applied here, was largely discretionary and should not be reversed on review unless it is arbitrary or otherwise clearly erroneous. Clendenon v. Yarbrough, 233 Ala. 269, 171 So. 277; Birmingham Electric Co. v. Yoast, supra.
We accept that view of the situation, and for that reason the judgment of the circuit court setting aside the verdict and granting a new trial is hereby affirmed.
LAWSON, SIMPSON and MERRILL, JJ., concur.
LAWSON, Justice (concurring specially).
As an original proposition, I would dissent from the holding of the court in this case on the ground that the fact that the juror Siniard participated in a verdict for the plaintiff against the defendant McCoy, in the amount of $41,500, shows beyond peradventure that he entertained no ill feeling towards the plaintiff because he was represented by a firm of which Mr. Wheeler was a member.
However, I took a similar position in Birmingham Electric Co. v. Yoast, 256 Ala. 673, 57 So.2d 103, 30 A.L.R.2d 907, as expressed in my dissent in that case. The court took a contrary view and I see no occasion to perpetuate here my dissent in Birmingham Electric Co. v. Yoast, supra. I, therefore, concur in the affirmance of the judgment of the trial court here under review.
MERRILL, J., concurs in the above.