I. Contingent fee cases, 1052. II. Negligence cases, 1052. III. Libel and slander, 1058. IV. Statute of Limitations, 1059. V. Miscellaneous, 1059.

This annotation does not include criminal cases. Nor does it treat of prejudice in favor of or against the business of a party, or prejudice against corporations generally.

For right to interrogate juror on voir dire as to prejudice for or against particular class of witnesses, see the annotation in 1 A.L.R. 1688.

1. Contingent fee cases.

It will be seen that in the reported case (RHOADES v. EL PASO & S. W. R. Co. ante, 1048) the appellate court, in ordering a new trial, holds that a juror who does not believe that an attorney who takes a case for a contingent fee should receive anything is so prejudiced as not to be qualified to sit in a case in which an attorney is employed on that basis.

In Houston & T. C. R. Co. v. Gray (1912) 105 Tex. 42, 143 S. W. 606, the supreme court, in refusing to disturb the decision of the trial court, which held that the verdict must stand, said, inter alia: "At the trial of this case, after the jury had been charged and retired, and while engaged in the consideration of the case, one or more of the jurors stated that the plaintiff ought to have a verdict for $50,000 because the lawyers would get half. This was very reprehensible conduct, and the court might, and we believe should, have punished such juror or jurors as indulged in urging that suggestion.

fairly in the investigation, and we know that he could form safer conclusions from examining the jurors than this court can from the record."

II. Negligence cases.

The question of prejudice of a juror in regard to negligence actions has been discussed in a good many

cases.

Prejudice against negligence aetions. it has been held that one who is prejudiced against negligence actions is not a competent juror in such an action. Quill v. Southern P. Co. (1903) 140 Cal. 268, 73 Pac. 991; Fitts v. Southern P. Co. (1906) 149 Cal. 310, 117 Am. St. Rep. 130, 86 Pac. 710; Slater v. United Traction Co. (1916) 172 App. Div. 404, 157 N. Y. Supp. 909; Galveston, H. & S. A. R. Co. v. Manns (1904) 37 Tex. Civ. App. 356, 84 S. W. 254. See also Baccelli v. Booth (1912) 75 Misc. 260, 133 N. Y. Supp. 343.

In Quill v. Southern P. Co. (Cal.) supra, an action for wrongful death, it was held to be error to deny challenges for cause to jurors who felt a prejudice against suits to recover damages for personal injuries, believing that many such were brought without merit, and that the number was constantly increasing.

In Fitts v. Southern P. Co. (1906) 149 Cal. 310, 117 Am. St. Rep. 130, 86 Pac. 710, it was held to be error to disallow a challenge to a juror in a negligence case, where the juror held a fixed and abiding prejudice against negligence actions.

In Slater v. United Traction Co. (1916) 172 App. Div. 404, 157 N. Y. Supp. 909, the court said, inter alia: "Upon the examination of the persons called as jurors in this case each juror was asked if he had any prejudice against a negligence action. Juror Haswell replied that he had not. He was accepted as a

juror, and a verdict was returned March 9th in favor of the defendant. On March 11th he was called in another case in the same court, and, upon a like examination, stated that he was prejudiced against such an action, and was excused from service. Upon plaintiff's motion the verdict was set aside by the presiding judge upon the ground that the juror had, by a false answer, been permitted to sit in the case. The juror attempts to explain his answers by saying he answered the question before he fully realized its import, and then had not sufficient confidence in himself to correct the answer. He does not claim that his attitude about such actions had changed in the meantime. The trial judge recollected the facts, and the court repeated the question to the juror, and was not satisfied with his explanation and set the verdict aside. The order rested in the sound discretion of the court."

In Galveston, H. & S. A. R. Co. v. Manns (1904) 37 Tex. Civ. App. 356, 84 S. W. 254, a negligence action against the plaintiff's employer, the appellate court refused to interfere with the ruling of the trial court in sustaining challenges by the plaintiff to jurors, for cause, upon the ground that each had formed such a prejudice against suits of this nature as might influence him in his verdict. The court said, inter alia: "We are not prepared to say that the prejudice of a juror against a class of litigation to which the case he is called on to try belongs does not disqualify him from sitting as a juror in that particular case; for prejudice against a class of litigation under which the plaintiff's cause of action comes is tantamount to a prejudice against the law which gives him the right to recover in his suit. And its existence in the mind of a juror, in the trial of the case, might work a greater injury than actual prejudice against him personally by the juror would cause him."

In Baccelli v. Booth (N. Y.) supra, it was held to be ground for a new trial that a juror in a negligence ac

tion failed to disclose the fact that he had been sued for alleged negligence.

As an illustration of the difficulty of summarizing the testimony of a juror, reference may be made to Ternetz v. St. Louis Lime & Cement Co. (1923) Mo., 252 S. W. 65, where it was held that the court committed no error in sustaining the challenge to a juror whose examination was as follows: "'Q. Now, the court will tell you in its instructions that the burden of proof is on the plaintiff to prove his case by a preponderance or the greater weight of the credible or believable testimony. Will you require the plaintiff to go any further than that? A. I hardly think so.' Would not hesitate to give plaintiff a verdict, if evidence showed it happened through the fault and negligence of the defendant. 'I would have to know that it wasn't the man's fault; that is, that it was the company's fault, and that the man was not at fault. Q. In other words, the evidence would have to, if I understand you correctly, convince you beyond a reasonable doubt that the defendant was guilty of negligence, before you would return a verdict? A. Yes, sir. Q. Now, Mr. Juror, you have some prejudice, havn't you, against these cases, that would take evidence to remove; haven't you? A. Yes, sir.' It would have to be shown clearly. 'Q. Beyond a reasonable doubt, is that right? A. I would have to see it.'"

But where the prejudice does not influence the juror's judgment, he is acceptable. McCarthy v. Cass Ave. & F. G. R. Co. (1887) 92 Mo. 536, 4 S. W. 516; Ruschenberg v. Southern Electric R. Co. (1901) 161 Mo. 70, 61 S. W. 626; Hern v. Southern P. Co. (1905) 29 Utah, 127, 81 Pac. 902; Denham v. Washington Water Power Co. (1905) 38 Wash. 354, 80 Pac. 546.

In Ruschenberg v. Southern Electric R. Co. (1901) 161 Mo. 70, 61 S. W. 626, the court, in affirming a judgment for the defendant in a negligence case, refused to hold that

the finding of the circuit court in accepting two jurors was clearly against the evidence. It there appeared that the two jurors both answered that they were prejudiced against personal damage suits; that there were too many such suits brought; that they knew nothing about this particular suit; that their prejudice was a general prejudice against such suits; and they knew no reason why they could not try this case fairly and decide it according to the evidence and instructions of the court. One admitted he would start in with a bias in his mind against such cases, but, in answer to the court's question, "Then I understand you to say that your prejudice is merely against damage suits. general)?" he said, "No, sir, not against this case in particular." Counsel for plaintiff then asked, "Then I understand you to say if the evidence in this case was sufficient to convince you that the plaintiff had a good cause of action, you would give him a verdict?" and he answered, "Yes, sir."

(in

In Hern v. Southern P. Co. (1905) 29 Utah, 127, 81 Pac. 902, a negligence action against a railroad company, where the judgment was for the defendant, it was held that the trial court did not err in refusing to grant a new trial on account of the prejudice of a juror. In support of his motion for a new trial, appellant presented affidavits on his behalf, showing that in a similar case, tried prior to this one, this same juror, on his voir dire, stated that he was biased and prejudiced in a general way against cases of this kind, but in that connection also stated that he heard this class of cases discussed in connection with some specific instance which had impressed him and those with whom he was talking that the particular case was not a just one; that he did not condemn all cases; that he recognized that there were just cases, many of them, perhaps the majority; that he had been in the railroad business nearly all his life; that his attention had not been particularly

called to such cases; that, if he had such a case against a railroad company, he would be willing to have eight men of the same experience, the same knowledge, the same impression, and the same state of mind as he had, to try his case.

In Denham v. Washington Water Power Co. (Wash.) supra,- -a street car accident case,-it was held that there was no error in overruling a challenge to a juror who testified, in part, as follows: "By the court: As I understand it, Mr. White, you have a prejudice generally against damage cases for personal injury? A. Yes, sir. Q. But you think you could disregard that prejudice and decide the case according to the evidence and the instructions of the court, do you? A. I think I could give the evidence the same weight that I would in any other case; I think I would, the same. Q. If, after hearing the evidence and instructions of the court in this case, you thought that the plaintiff was entitled to damages, you would not hesitate to award damages because of any prejudice that you might have against damage suits generally? A. No, sir, I think not."

In McCarthy v. Cass Ave. & F. G. R. Co. (Mo.) supra, an action for wrongful death, it was held that the court committed no error in overruling the plaintiff's challenge to four jurors for cause, the court giving the facts as to one of the jurors as presenting the question as to all of them. It appeared that plaintiff's counsel asked the juror whether, in an action brought to recover damages under the statutes of Missouri, on account of killing a person, he would have any bias or prejudice one way or the other; the juror answered that he did have a bias against such a case,— that he was prejudiced against all damage cases. Being asked if such bias existed at this time, he answered that it did. Asked if it would require evidence to remove said prejudice in this case, he said in answer: "Well, I suppose there would have to be evidence anyway,"-that it would require strong evidence. The juror

further answered that he believed he could hear the evidence and render a verdict according to the law and the evidence, etc.; that "if the evidence went to show that the party was entitled to damages, then, as a matter of justice, I would be in favor of awarding damages; otherwise, I could not." Asked if he would start into the case with a prejudice against it which it would require evidence to remove, he answered: "Not in this case. I have no prejudice against this case, because I don't know anything about it." The court said, inter alia: "If he have such a bias or prejudice against a class of cases that his judgment will be warped, then he should be set aside and not accepted as a juror; but it ought to appear that his bias is such as to influence his judgment. Again, the competency of a juror is a mixed question of fact and law. It is for the court to try this question of fact, and the finding of the trial court as to the competency of the juror ought not to be disturbed, unless it is clearly and manifestly against the evidence. . Now, from the examination of the juror in this case, it clearly appears that he had no opinion as to this case. His evidence, as a whole, shows that he was opposed to unfounded personal damage suits; but if the evidence showed that the plaintiffs were entitled to damages, then he would be in favor of awarding them. What more could be asked of any juror? But, applying the rule before asserted, it becomes clear that we ought not to disturb the finding of the circuit court, as to the competency of these jurors." -nonresident plaintiff.

When, in an action brought by a nonresident plaintiff to recover damages for personal injuries, a juror testifies, in response to questions propounded to him touching his qualifications, that he has a prejudice. against nonresidents bringing such actions in the courts of this state, where they might have been brought in the courts of the state of which plaintiff is a resident, and further testifies that he will require more evi

dence in such case on the part of plaintiff, it is error to overrule a challenge of such juror for cause and compel plaintiff to try his case to a jury of which such juror is a member, notwithstanding the juror further testifies that he will be bound by the evidence received on the trial and follow the law as declared by the court. Naylor v. Metropolitan Street R. Co. (1903) 66 Kan. 407, 71 Pac. 835.

- defective highways.

In Judd v. Claremont (1890) 66 N. H. 418, 23 Atl. 427, an action against a town to recover damages for injuries from a defective highway, the alleged defect being a depression in the center of the highway in which were some fast stones uncovered, and some loose stones, the jury returned a verdict for the defendants, which the plaintiff moved to set aside because one of the jurors was not indifferent. It appeared that the juror in 1890, while acting as selectman of another town, refused to settle a claim against his town for damages to a traveler from a rolling stone, because, as he said, he did not think the law required towns to pay damages caused by rolling stones, but, if it did, it ought to be repealed; and that he thought Vermont had the best law, which was to let people drive at their own risk. The court said: "The fact that the juror doubted the wisdom or expediency of the law did not render him unindifferent, provided he would be governed by the law of the case as laid down by the court; and that he was willing to be thus guided in his action sufficiently appears."

In Beach v. Seattle (1915) 85 Wash. 379, 148 Pac. 39, an action against a city for personal injuries sustained by a passenger in an automobile through the negligent maintenance of a street, it was held that there was no error in sustaining the challenge to a juror who testified in part: "Q. Have you any prejudice against young people attending social dances? A. Yes, sir, I have. Q. And the fact, if it occurred in this case, that these people were returning from a

social dance, would prejudice you, would it? A. It would." Prejudice in favor of action.

In Ruby v. Chicago, M. & St. P. R. Co. (1911) 150 Iowa, 128, 129 N. W. 817, it was held to be error in a crossing accident case to refuse to permit counsel to put to jurors the following questions: "Q. Have you any such feeling that, because there has been an accident, that the railroad company ought to be compelled to pay for it?" "Q. The mere fact that there occurs an accident at a railroad crossing, does that create in your mind, or are you conscious of having, that kind of a feeling that on account of that accident the railroad company ought to pay for it?"

In Metallic Gold Min. Co. v. Watson (1911) 51 Colo. 278, 117 Pac. 609, Ann. Cas. 1913A, 1276, an action by a miner against his employer for negligence, it was held to be error to deny a challenge to a juror who was prejudiced in favor of the laboring man to an extent that he would require a reversal of the order of proof and place upon the defendant the burden of disproving the plaintiff's

case.

In Atchison, T. & S. F. R. Co. v. Chance (1896) 57 Kan. 40, 45 Pac. 60, an action by an employee of a railroad company against his employer for negligence, it was held to be error to overrule a challenge for cause to a juror who admitted that he had a feeling against railroads generally, which had existed for several years, and whose examination further showed the following: "Q. Would it not require a continual effort on your part to deal with the railroad company in the same way that you would deal with an individual? A. Yes. Q. So believing and so feeling, Mr. Dye, don't you believe that you could not take this case in the same impartial way that you would take a case between two individuals? A. Perhaps not."

In Theobald v. St. Louis Transit Co. (1905) 191 Mo. 395, 90 S. W. 354, an action for wrongful death against a street car company, it was held to

be error to overrule challenges for cause to jurors prejudiced against the defendant or against companies of the same kind.

Cited and followed in the negligence case of Heidbrink v. United R. Co. (1908) 133 Mo. App. 40, 113 S. W. 223, where the mother of a juror had previously been injured by a car of the defendant company.

(In Knice v. Hedges (1922) 119 Misc. 1, 194 N. Y. Supp. 657, affirmed in (1923) App. Div. —, 198 N. Y. Supp. 926, the court set aside a verdict in what seems to have been a negligence case [against a receiver], because a juror did not make known the fact that his father had been injured in a railroad accident.)

(But in McManama v. United R. Co. (1913) 175 Mo. App. 43, 158 S. W. 442, the court refused to disturb the ruling of the trial court overruling a challenge to a juror whose two daughters had previously been injured in an accident of the defendant street car company.)

In Nashville, C. & St. L. R. Co. v. Henry (1916) 168 Ky. 453, 182 S. W. 651, affirmed in (1917) 243 U. S. 626, 61 L. ed. 936, 37 Sup. Ct. Rep. 401, the court stated that it did not think that "the alleged misconduct of the juror was sufficient to authorize the granting of a new trial," and said: "All that appears is that one of the jurors had said, in a general conversation some weeks before he was selected as a juror, that he believed a person who was hurt while working for a corporation ought to be paid, and if he had anything to do with it he would get paid for his injury. But it does not appear that any of the parties engaged in the conversation had in mind this case, or that it was anticipated at the time that the person who made this statement would ever be called as a juror in the case. Casual remarks made by men as to what they thought ought to be done or ought not to be done in certain classes of cases are not such misconduct as will authorize the granting of a new trial, when it does not appear that what they said had any reference