19 N.Y.S. 598 | N.Y. Sup. Ct. | 1892
The plaintiff at the circuit obtained a verdict in this action, the complaint in which contained two counts,—one for assault and battery, and the other for false imprisonment; both wrongs having been perpetrated, as was alleged, by a servant of the defendant while acting within the scope of his duty as such servant. The answer put in issue the authority of the servant to act in the matters complained of for the defendant, and also contained denials of the facts alleged as constituting the wrongs stated to have been committed. Prom the judgment entered on the verdict, and from an order denying a motion for a new trial, this appeal is taken.
The verdict of the jury as the testimony was put before them and under the charge of the trial judge (to which no exception was taken by the defendant’s counsel) was fully justified. Errors of law, however, are claimed to have been made by the judge in his rulings, and the first relates to the exclusion of a question asked by the defendant’s counsel of the jurors impaneled to try the cause, and before the case was opened. It appeared that the plaintiff is a colored man, and the defendant the keeper of a liquor saloon, and the difficulty between the parties originated in the refusal of the defendant’s barkeeper to furnish the plaintiff with beer on his applying for it. The plaintiff’s counsel asked the jurors several questions directed to an ascertainment of the condition of their minds as to race prejudice, which questions were properly not allowed to be put. Thereupon the defendant’s counsel asked the jurors collectively: “Has any gentleman of the jury any prejudice against a man who conducts business in which he has a bar, and over which he retails drinks by the glass?” The judge, on objection, also overruled that question, and the defendant claims he was entitled to an answer to it. It is the right of every litigant in cases tried before a jury to have a fair, impartial, and unbiased panel, and to interrogate the jurors drawn to ascertain their fitness for service in respect thereto. Any appropriate question framed to elicit the condition of mind of the jurors respecting the parties or the general subject-matter of the action may be addressed to the panel or its individual members. But where an answer, one way or the other, to a proposed question would not disqualify a juror, it is not error to disallow it. Here the question related only to the particular business in which the defendant happened to be engaged. The presumption is that in all other respects the jurors were competent, and had no prejudice, and could render an impartial verdict, for the record discloses nqthing further on the subject. It has been held in this court—fifth department (De Puy v. Quinn, 16 N. Y. Supp. 710)—that a juror who declared “ he did not think much of the business of selling liquor, and was prejudiced against it,” was not disqualified, even in an action under the civil damage act, from sitting in a case in which the defendant was a liquor dealer; and it is very aptly said in the opinion of the court: “Had one of the parties been a lawyer, minister, or dealer in stocks, jurors could be found having a prejudice against their business, and yet in a litigation where one of them was a party it would scarcely be claimed that a juror who entertained such prejudice was disqualified for that reason to sit in the case.” Here the prejudice referred to in the question, notwithstanding its form, was against the business, and we think no error was committed in sustaining the objection to it.
Another error assigned is that the court was wrong in refusing to dismiss the complaint as to both causes of action. The principal ground urged in that connection is that it was not proven that one Ennis, who instigated and was charged with having committed the assault, was acting within his employment in doing so, and that, at all events, it was not shown he was authorized to cause the arrest to be made, or to prefer a complaint against the
