Dragovich v. Slosson

DORAN, J. The plaintiff, respondent herein, recovered a judgment of $10,000, entered upon a verdict of a jury, for personal injuries received on December 19, 1949; alleged to have been caused by the negligent operation of a gravel truck driven by the defendant Dana Sible and owned by the defendant Slosson, and resulting from a collision between the truck and plaintiff’s automobile. There was a cross-complaint for damages to the Slosson truck.

There are but two assignments of error, the first of which is that “The court committed reversible error in excusing from the jury two of the jurors after the jury had been accepted by both parties.” From interrogation by the trial [371]court it appeared that two jurors had previously served on a jury panel and had waited to be called as jurors in a case in which Mr. Tipton, attorney herein, appeared, but had not served in that case. At the beginning of the present case when the judge questioned the jurors as to knowing either of the attorneys, the two jurors had answered in the negative, not then recognizing Attorney Tipton. Later, upon the question being repeated, and after the jury had been approved by both parties, the two jurors informed the trial court of that fact, and were excused. Thereafter, “because of the unfortunate situation,” it was stipulated that each party might have one additional peremptory challenge.

It is conceded in appellants’ brief that “In the exercise of a proper discretion a juror may be excused after the jury has been accepted or after the trial has commenced,” but it is claimed that to do so in the present case amounts to an abuse of discretion in that “after a jury is accepted by both parties, the trial judge could act only for a good and valid reason to excuse jurors, and that the mere fact that they on one occasion saw the attorney for one of the parties in the court room is not such good and sufficient reason.”

In 15 California Jurisprudence, page 408, section 80, the rule is stated thus: “Since a defendant or a party is not entitled to a jury composed of any particuar jurors, the court may of its own motion discharge a qualified juror without committing any error, provided there is finally selected a jury composed of qualified and competent persons.” In People v. Murray, 85 Cal. 350 [24 P. 666], quoted with approval in People v. Harris, 45 Cal.App. 547 [188 P. 65], the reviewing court said; “The court had the undoubted right to discharge them, or any of them, at any time, without giving any reason for such discharge and without the existence of any reason.”