This is an appeal by defendant from judgment for plaintiff, on the verdict of a jury, in action for personal injury.
Assignment 4 asserts that the court erred in overruling defendant's objection to plaintiff's challenge of juror Williams for cause as follows:
"Court: Overrule the objection.
"Mr. McCall: We except."
All that the record shows, even when viewed most strongly against the qualification of juror Williams, is that he was, at the time of the instant trial, a client of one of the attorneys for defendant.
This court has said: "There is no statute in Alabama, nor rule of common law, which make a juror subject to challenge for principal cause, for the reason that he had employed a party to the suit as an attorney
If a juror is not subject to challenge for principal cause when he is client of the party himself, certainly the juror is not subject to challenge for such cause when he is client, not of the party, but of the party's attorney merely. Under the quoted rule, juror Williams was not subject to challenge for principal cause.
The only remaining ground for disqualifying juror Williams is that he be subject to challenge to the favor. "A challenge for favor or bias is to be determined by the trial court as any other question of fact, tried without a jury, and is reviewable on like principles. (Citations omitted.) The decision of the trial court on such question founded on oral evidence is entitled to great weight and will not be interfered with unless clearly erroneous, equivalent to an abuse of discretion. (Citation omitted.)" Brown v. Woolverton, supra, at page 115, 121 So. at page 406.
The question then is whether the facts shown as to juror Williams proved favor or bias in fact. The record shows no facts other than as above set out. There is no evidence to support a finding that Williams was in fact biased in favor of or against either party. As a result, a finding that Williams was disqualified is clearly erroneous, and overruling defendant's objection to plaintiff's challenge for cause was error.
We are not persuaded that this action was error without injury. Under our system of selecting a jury in a civil case, the clerk furnishes a list of jurors from which a jury must be obtained by the parties or their attorneys alternately striking one from the list until only twelve remain on the list, the party demanding the jury commencing. § 54, Title 30. It would scarcely be contended that a party was not prejudiced if the opposite party, on his first strike, were permitted to begin by striking two names instead of one, and thereafter the parties struck one each. Such is the result of sustaining plaintiff's challenge to juror Williams. The effect is to allow plaintiff one strike more than the statute gives him.
Whether the trial be in a circuit with more than two judges or not makes no difference. In either case, the challenger is enabled to eliminate the unwanted juror without using a strike, although the juror is not disqualified.
What was said in an earlier case involving striking a jury seems appropriate here, to wit:
Assignment 5 asserts that the court erred in allowing plaintiff to challenge for cause the juror Ledyard, as follows:
"Mr. Lattof: I challenge Mr. Ledyard.
"Mr. McCall: I object to that.
"Mr. McCall: We except."
The exact relation between the Casualty Company and Ledyard does not appear. Whether he is principal on a bond executed by the Casualty Company as surety, or whether he is obligee for whose benefit the bond was executed by the Casualty Company does not appear. His statement, that he is bonded, in ordinary usage could mean either situation. Whichever is the case, however, his relationship to the Casualty Company, on breach of condition of the bond, would seem to become that of debtor or creditor. If he is principal and defaults, he might become debtor; if he is obligee he would become creditor if the condition of the bond should be broken. Thus it seems that the juror's qualification or disqualification, to serve as juror in a case in which the Casualty Company is directly interested, would rest on the same considerations as those which determine the qualification or disqualification of debtor and creditor.
In the instant case, no showing is made that the juror Ledyard is pecuniarily interested in the result of this suit. It is not made to appear how he would be affected, or that he would be affected at all, if plaintiff or defendant be successful. There is no evidence to prove bias or favor in fact. Thus it does not appear that he was subject to challenge either for principal cause or to the favor, and overruling defendant's objection to plaintiff's challenge of Ledyard was error for the same reasons which apply to Assignment 4.
It may be well to note that the question here is as to the qualification of jurors and not as to the right of a party to have the jury interrogated for the purpose of obtaining
For these errors the cause must be reversed and remanded. Other errors argued will probably not occur on another trial so we pretermit discussion of them.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.