Comfort v. Mosser

Opinion, Mr. Justice Paxson: We are unable to see upon what principle the learned judge below excluded the question asked of the juror, Mr. Klink; see first assignment. We infer, however, from his opinion overruling the motion for a new trial, that he regarded the questions, even if answered in the affirmative, as insufficient to disqualify the juror. The question appears to have been treated both by court and counsel as if the juror had been challenged for cause, and a number of our cases were cited to show that an opinion formed by a juror upon common rumor does not disqualify him. No fault is found with these cases. The error consists in their application to a different state of facts. There was no challenge for cause, the question of the disqualification of the juror was not reached. The inquiry was a preliminary one to ascertain the condition of the juror’s mind as to bias or prejudice. We cannot of course say what the result would have been had the court permitted the examination. The question in itself was entirely free from objection; it was as follows: “Defendants’ counsel propose to ask several jurors, of whom Mr. Klink is one, whether he has not heard the merits of this case between the plaintiff and the defendants discussed, and whether he has not formed an opinion as to the merits of the controversy between the parties to this case.” The objection to this offer appears to have been based principally upon the fact that, as there had never been a previous [466] trial between tbe parties of the issne involved, the juror could only have formed his opinion from common rumor. This objection was not well taken. It raised an issue that had not been reached. The inquiry was stopped at the very threshold, and the witness was not allowed to state whether he had formed an opinion, or the grounds of such opinion, if formed. A party to a suit has a right to an impartial jury. -Hence it has always been customary to allow him to examine a juror on his voir dire as to any matter which may affect his mind or show bias or prejudice. The result of such an investigation may or may not amount to a disqualification of the juror. That is a question which arises only upon a challenge for cause. The party has a right to such examination to enable him to exercise his peremptory challenges intelligently and I have never before known] it to be denied. It was urged, howeveil, that this error did the defendants below no harm. That the juror referred to did not sit in the case. If we were satisfied that no harm had been done we would not reverse for this cause. But there is nothing in the paper book from which we can safely draw such a conclusion. The remaining assignments of error are > without merit. Some of the evidence admitted would perhaps have been incompetent if the delivery of the deed from John C. Comfort to Elizabeth Comfort had been established. But this was one of the disputed facts in the ease, and the evidence referred to tended to rebut the presumption of a delivery, and for this purpose we think it was competent. We are entirely satisfied with the way in which the ease was tried, and but for the single error referred to it might have been affirmed. Judgment reversed, and a venire facias de novo awarded.