Denver City Tramway Co. v. Kennedy

Mr. Justice Hill delivered tiie opinion of the court: This action was brought by the appellee to recover damages for personal injuries sustained upon account of the alleged negligence of the appellant company The defendant interposed two defenses: the first was a general denial of the alleged acts of negligence; the second was the affirmative, defense — 419 — of contributory negligence upon the part of the plaintiff, without which it is alleged the accident would not have occurred. A replication was filed to the second defense, which denied all new matter therein contained. A trial by jury resulted in a' verdict and judgment in favor of the plaintiff in the sum of $4,000, from which this appeal has been prosecuted. The first assignment of error pertains to the selection of the jury. This contention involves the proper interpretation of section 1 of an act approved April 10, 1905, found in the session laws of that year at page 280; this section reads as follows: ‘ ‘ Section 1. That the fact that any person sum- • moned in any way to serve as a juror in any district or county court shall have served as á juror in either of said courts, at any prior term, within one year next preceding, shall be a sufficient excuse for such person from service, and may also be ground for challenge for cause to such individual summoned.” Section' 2 of the act repeals all acts and parts of acts in conflict or inconsistent with the section above quoted. It developed during the examination of the jurors upon their voir dire that Robert Black, one of their number, had been summoned in the district court on the 19th of April, 1906, and had then served upon the jury for a period of seven or eight days; that he was again summoned for duty on April 17th, 1907, and had .served continuously from said last mentioned date up to and including the time of the trial of this cause, which took place on the 14th of May, 1907. Counsel for defendant interposed a challenge for cause, on the ground that the juror had served at a prior term of court within the period of one j ear. This challenge was overruled by the court with the remark “the statute says served.” The de^. fendant exhausted its four peremptory challenges, having used one of them ■ upon the juror Robert — 420 — Black, hence it is in a position to urge this question. • — United Workmen v. Taylor, 44 Colo. 373. It is agreed that the terms of the district court for the second judicial district, where this causé was being tried, commence oh the second Tuesdays'In January, April and September. As an aid in determining what was intended by this act, it is necessary to investigate previous legislative expressions upon this';subject. It first received consideration in 1876; ibis act was repealed and a new one substituted in 1881, which was amended by the act of 1889, being section 2595 of Mills ’ Annotated Statutes, and this act was at least in part repealed by the act of 1891, being section 2609, vol. 3, Mills’ Annotated Statutes.- — Dill v. The People, 19 Colo. 469. This later act was, at least in the part under consideration, repealed by the act of 1905, above quoted; otherwise, in the language of Mr. Justice Elliott in -the case of Dill v. The People, supra, unless that portion of the act of 1905 covering this question has this effect, it has no effect, a construction to be avoided if possible. It will be noted that in the'act of 1889 the language used is “within the year next preceding”; the act of 1891 reads “within one year then last past”; while the act of 1905 uses the words “at any prior term within one year next preceding.” Hence, when a comparison is made between the acts of 1889, ,1891 and 1905, it will be observed that they are quite similar on this subject with the exception that the words “at any prior term” are inserted in the act of 1905, and precede the expression “within one year next preceding. ’ ’ The general rule in matters of this kind is to adopt a construction that will give full force and effect to every word and expression; provided a proper, logical and reasonable conclusion can be deduced by so doing. — Lamborn v. Bell, 18 Colo. 346; City of Denver v. Campbell, 33 Colo. 162. — 421 — The construction placed upon this statute by the trial court, and, as contended for by the appellee, makes it no broader in this respect than the previous act, and renders the words - “at any prior term” nugatory. If counsel’s contention is correct,- these' words might just as well have been omitted from the act. On the other hand, if the purpose was, as we think, to make it a ground of challenge- of a juror who had served upon a jury at any prior term within the period of one year next preceding, despite the fact that a greater period of time than three hundred sixty-five days had elapsed, when this view is accepted, then full force and effect is given to the words “at any prior term,” for which reasons we conclude that the language of this act means as it says, that-where any person has been summoned to serve as a juror and shall have served at any prior term within one year next preceding, it means at any prior term luithin a year next preceding, regardless of the fact that the time of service may not have been within a year from that date, and that it is the terms o'f court which control. In other words, when the juror served at the' April term, 1906, regardless of how short a period, it made it a ground of challenge to any one who so desired when he was again called and sought to be made a juror at the April term, 1907. This gives full effect to the entire section and was unquestionably what was intended by the language used. Counsel for the appellee make the further point, conceding arguendo the correctness of this position, that there is nothing in the record to indicate that the defendant was thereby compelled to exhaust its last peremptory challenge on this juror, but that they could have used one on him, and still have had three left. They urge further, which is correct, that the record does show that this juror did not serve on the jury and they contend: (a) It is a rule of — 422 — paramount importance that errors committed in overruling challenges for cause are not ground of reversal, unless it be shown an objectionable juror was forced upon the challenging party after he had exhausted his peremptory challenges; (b) An objection that defendant was compelled to' accept, because all his peremptory challenges were exhausted, a certain person called as a juror, will not be sustained where the record fails to show that such person was in gll respects disqualified to sit as a juror; (c) Where it is not shown that defendant was prejudiced because he was compelled to challenge peremptorily a disqualified juror, the judgment will not be reversed; and (d) Unless it appears that defendant was deprived of a fair and impartial trial, the court will not reverse. And they cite Thompson on Trials, sec. 120, and a large number of cases from other states which they claim support these contentions. An examination of the cases presented, so far as we have been able to ascertain, does not disclose that any of them were under a statute similar to ours, which divests the court of any discretion in the matter. This, to say the least, is of vital importance. In the case under consideration, the juror was not challenged because his examination disclosed any particular bias or prejudice. The challenge here was a statutory one, the court did not attempt to* exercise any discretion, but held, from the facts disclosed, that the juror did not come within its provisions so as to malee him subject to challenge for the reasons stated in the act. In this -the trial court erred, and it could be just as consistently argued that a judgment should not be reversed where the court had limited the number of peremptory challenges to less than the number allowed by law, unl,ess the complaining party could show some further injury occasioned to him thereby — 423 — which could not usually be done in a case like the one under consideration. Here a right given the defendant by statute was denied. The injury complained of was the denial of a statutory right; that is the error the court committed, and that is the injury complained of, the result of which compelled the defendant to exhaust one of its peremptory chai-' lenges on this juror when it was entitled to- have him excused without so doing; this left the defendant one less peremptory challenge to be used upon others. The evidence was conflicting. Had the objection been sustained, the personnel of the jury would have been different. As to what effect this might or might not have had upon the ultimate result of the trial is a matter of pure conjecture, and is not for the trial court, or even this court, to make a guess at. When a privilege, which the legislature has seen fit to give to a party litigant, has been denied him and it is properly complained of on review and this court ascertains that such right was denied him, it has performed its duty. To go any further would be to add to the statute a matter which the legislature did not deem proper to incorporate in it and is to undertake judicial legislation, which the courts should be exceedingly careful to avoid. Complaint is made to the admission and rejection of evidence, the giving of several instructions and the refusal to give others offered upon behalf of the defendant, but as the error committed in the selection of the jury will necessitate a reversal of the judgment, we do not deem it necessary to consider the other assignments which have been presented, for the reason, among others, that they have been ably briefed upon both sides and the'* views of each are now well known to the other, with the possession of this knowledge in advance, upon a second trial many matters now complained of, if not all of them, may probably be eliminated and — 424 — thereby avoid any necessity for their future consideration. For the- reasons stated, the judgment is reversed and the cause remanded for a new trial. Reversed. Chief Justice Campbell and Mr. Justice Gabbert concur.