Rehearing Denied March 24, 1953.
[75 Ariz. 176] Richey & Herring, of Douglas, for appellant.
Holmes & Morrison, of Tucson, for appellee Powers.
Clifford R. McFall, Wilbert E. Dolph, Jr., of Tucson, for appellee Jones.
Jose Juan Moran, plaintiff-appellant, brought a tort action against defendants-appellees, Donald R. Jones and William R. Powers, for damages suffered as a result of the alleged negligence of the defendants in connection with an automobile collision occurring on the highway between Sonoita and Patagonia, in Santa Cruz County, on October 29, 1950. The jury returned a [75 Ariz. 177] nine to three verdict in favor of the defendants, and judgment was entered thereon. A motion for a new trial, based upon the matters urged on this appeal, was denied and the matter is now before us for review. We shall hereafter refer to the parties as plaintiff and defendants.
No reporter's transcript of the proceedings had at the trial has been furnished, and to determine the two assignments of error, which deal only with the manner of impaneling and selecting a jury to try the case, it is not necessary for us to make a further recitation of the facts with reference to the accident.
Specifically the plaintiff (appellant) assigns that the trial court erred in (1) ordering (over his objection) 24 jurors to be called and qualified into the panel from which the jury of 12 was to be selected, and (2) in allowing each of the defendants four peremptory challenges. As a matter of law it is contended that this action was contrary to the plain provisions of the statute and violated his constitutional guaranty of 'trial by jury' in that a jury formed in such a manner was not a lawfully constituted jury.
On the other hand the defendants maintain: (a) that the plaintiff made no objection during the trial proceedings to any claimed error or irregularity in the manner of selecting the jury, and hence is now foreclosed from basing an assignment of error thereon; (b) that under the statute each defendant was entitled to four peremptory challenges, where, as here, the interests of the co-defendants were adverse or antagonistic; (c) a party is not entitled to a trial by any particular jury, but merely by one which is fair and impartial; (d) in the absence of a showing of prejudice, the exercising of peremptory challenges in excess of the legal number is not reversible error; and (e) that plaintiff waived any objection he may have had to the manner of selecting the jury and the allowance of peremptory challenges, by later resisting the defendants' motion to declare a mistrial when the matter of insurance crept into the evidence during the course of the trial.
We shall treat these contentions in such order as seems best.
The Statutory Right
Section 37-121, A.C.A.1939, gives parties to a civil action certain peremptory challenges and provides for the manner of challenging as follows:
'In a civil action either party may challenge the jurors, but when there are several parties on either side, they shall join in a challenge before it can be made. The challenges shall be to individual jurors, and shall either be peremptory or for cause. Each party shall be entitled to four (4) peremptory challenges.' (Emphasis supplied.)
The general rule, recognized by defendants to be the weight of authority, which we hold is the correct one, is that
[75 Ariz. 178] '* * * where there are several plaintiffs or several defendants, * * * all on one side constitute but one party and are entitled only to the number of peremptory challenges allowed a single plaintiff or defendant; * * * statutes giving to 'each party'
a certain number of peremptory challenges are generally so construed. * * *' 50 C.J.S., Juries, § 281.
This is true under our statute even though the several defendants or several plaintiffs are antagonistic and adverse in their positions, since the exercise of a peremptory challenge in civil cases is purely a right or privilege granted by statute and our statute makes no exception where their interests are adverse. Cf. Colfax National Bank v. Davis Implement Co., 50 Wash. 92, 96 P. 823; Crandall v. Puget Sound Traction, Light & Power Co., 77 Wash. 37, 137 P. 319; Switzler v. Atchison, T. & S. F. Ry., 104 Cal.App. 138, 285 P. 918. We hold that the action of the court in allowing each defendant four peremptory challenges was error.
Failure to Object
While the right to a trial by jury is a most substantial right, it may be waived by a failure to demand it, Rule 38(d), Rules Civ.Proc., Sec. 21-910, A.C.A.1939. A fortiori, a failure to timely object to the manner in which a jury is being impaneled would constitute a waiver of the irregularity. 50 C.J.S., Juries, § 250.
It is admitted that the plaintiff did not in open court register an objection to granting each defendant four peremptory challenges. However, the record before us does show that the court ordered 24 jurors into the box and allowed a total of eight peremptory challenges to the defendants, upon the theory that their interests were antagonistic and that under the statute they were entitled to this number of challenges.
By his failure to protect his record the plaintiff has experienced great difficulty in bringing before us what he claims transpired in chambers in the presence of the court and counsel but in the absence of either the Clerk or a court reporter. In the trial court the plaintiff filed a petition to amend the record to show what he claims occurred in chambers, and at the same time he requested of opposing counsel an admission of such facts. After a hearing on the matter the trial court granted a motion to strike the request for admission of facts, and also denied the plaintiff's petition to amend the record. The rulings of the trial court on the motion and petition were not assigned as error. After the appeal reached this court the plaintiff similarly filed a petition to amend the record and for permission to file a supplemental abstract. We reserved a ruling on the last petition. It appears to us that it would be unwise and unfair, and would establish a dangerous precedent for us to undertake to settle a ...