Graybill

This is an action for libel. The plaintiff had a verdict and judgment in his favor for the sum of one dollar. The appeal is by the plaintiff from an order denying him a new trial.

The appellant contends that the order should be reversed because his challenge to William V. Bryan on his examination touching his qualifications to act as a juror was denied, and he was therefore compelled to exercise a peremptory challenge on said Bryan, and this is the ¡only point made for a reversal.

The challenge to Bryan was’upon the ground “that he is in a state of mind evincing bias against the plaintiff,” and was based on subdivisions 1 and 7 of section 602 of the Code of Civil Procedure.

The testimony of the juror was to the effect that he was in the newspaper business, was! the editor and proprietor of the Traveler. He associated actions for libel “in somewhat the same character as speculations,” and felt that in many instances they were unwarranted by the facts. He seemed to have this same opinion of “any kind of damage suit.” He thought the fact of his being a newspaper man and his adverse opinion of damage suits might create a prejudice in his mind and make him unfit to act as a juror.…

I dissent. A juror who goes into the box with a bias against either party, from whatever cause arising, cannot try the case fairly. The evidence of the juror Bryan showed clearly, and without any real qualification, that he was biased against the plaintiff. No distinction in principle can be made between his disqualifying admissions and those of the two jurors held to have been disqualified for bias in Quill v. Southern Pacific Co., 140 Cal. 268 . The evidence there may have been a little stronger, but it was the same in kind and proved only the same facts. Those jurors had a prejudice against actions for damages, and they admitted that if the ease was their own they would he unwilling to submit the issues to jurors feeling as they did. In this case the examination of the juror Bryan closed with this question and answer:—

As an honest man he could not deny that he would be unwilling, if the cause was his, to submit it to jurors feeling as he did, and his previous answers only lend force to the admission.

I concur in the judgment and in the views expressed in the opinion. The only possible ground for the contention that the juror was biased or prejudiced was his testimony relative to his feelings in regard to damage suits. He was a client of one of plaintiff's attorneys, did not know the parties, so far as appears had not heard or read of the case, and knew nothing about it. He gave some testimony tending to show that he had “some sort of prejudice” against not only actions;for damages for alleged libels, but against any kind of damage suits. His answers to questions indicated that he believed that such actions were often unwarranted by the facts and “of the same character as speculations.” While some of his expressions might be construed as indicating such a state of mind as would render him an unfair juror, taking the whole of his testimony into consideration, I cannot say that the judge of the court below, who saw the juror and heard him testify, was not warranted in finding that his feeling in regard to damage suits was not pf such a nature and extent as to interfere at all with the proper discharge of his duties as a juror.

I dissent. In answer to questions, the juror said at the outset of his examination, “I have a sort of prejudice which might.be removed by the evidence,” and that if he were the plaintiff he would not like to have his cause tried by a jury of twelve men in the same frame of mind he was then .in. He never denied or disclaimed the existence of this prejudice. In his subsequent examination he declared that if sworn as a juror he would try the case upon the evidence and upon the law given by the court. The last questions put to him were these: “Would you enter upon the trial of the case with a prejudice against the plaintiff?” Answer—“I think I would.” “Would you try the ease upon the evidence in court, and decide it according to the instructions of the court?” Answer—“I could not consistently do anything else.” “Would you do that?” Answer —“Yes, sir.” This closed the examination, and the answers quoted give the strongest statement he could make in favor of the plaintiff:. He does not in those answers wherein he says that he would try the ease upon the evidence and the law as given by the court, deny or dispute the existence of the prejudice in his mind. A prejudiced man can and does…