Moore v. Cass
10 Kan. 288
Kan.
1872
Check Treatment

The opinion of the court was delivered by

Kingman, C. J.:

It is claimed that the instructions given at the instance of defendant in error (plaintiff below) are not correct; but as there were no exceptions to them, this court will not examine them.

*291„ ,. „ Mm-. 2. instructions; proof. The court refused to give this instruction asked by plaintiff in error: “ The burden of proof is upon the plaintiff in this action to show gross carelessness or negligence on the part of the defendant in the care of the horse.” The action was to recover damages for the death of a hired horse caused by the negligence of the hirer. The hirer was liable for an omission of that diligence in the use and care of the horse which “all prudent men use, that is, the generality of mankind use, as to their own horses.” Such an omission is called ordinary negligence. That degree of negligence only the plaintiff was required to show, to entitle him to recover. The instruction asked, demanded proof of gross negligence to authorize a verdict. The difference between gross and ordinary negligence is too well established to require comment. Because the instruction exacted the proof of a degree of negligence greater than the law requires, it was not law.

_ .... ,. Directions of 00ult' The remaining questions arose on a motion for a new trial. The first is, that the court used language to the jury calculated to mislead the jury in the discharge of its duty. The remarks made only appear in affidavits, and certainly bore as strongly against one side as the other. Neither party made any objections at the time, but waited the result, and then the losing party was shocked at expressions “calculated to mislead the jury in the faithful and conscientious discharge of its duty.” It is an uncommon method to present the remarks of a court to a jury by means of affidavits addressed to the court which makes the remarks. It would be better to incorporate such remarks in a bill of exceptions, wherein the judge could set down just what he did say. In this case two jurors profess to give the substance only of what was said to them by the court, and so far as it was calculated to induce them to agree on a verdict it was eminently proper. The amount in controversy was small. The testimony was not strong on either side. It was very desirable that the controversy should be settled, if possible, without the cost and inconvenience of another trial. *292The jury had been out all night. The only phrase in the' remarks of the court about which there can be any doubt is this: “ That no man should say the verdict must be as he wants it, but all should be governed by a spirit of conciliation.” We are'not ready to say that that phrase embodies the law that should govern a jury; but taken in the connection in which it was-used we feel sure the jury were not misled by it. They must have understood, not that any juror should give up his own judgment, but should hold it open to reason and further examination in the jury-room.

4. .nmmyexempificafeon. Again, it is claimed that the fact that one of the jurors who was over sixty years of age was permitted to sit on the jury, would invalidate the verdict. The fact appears only after trial, and by the affidavit of the juror over the age fixed by law when men are exempt from such service. While the juror was clearly exempt by law from service as juryman, still the law does not render jiim incompetent on that account. The law is for the benefit of a class of men. If the exemption is not claimed by the party interested there is no one else injured by his service on the jury. This point has been often decided, and with marked uniformity: 2 Graham & W. on New Trials, 275, et seq.

e intimacy with qnaiification" of jraor. The remaining error urged arose on this state of facts: John Donnelly, one of the jurors who tried the case, upon his examination under oath as to his qualifications as a juryman that he was acquainted with the plaintiff, but not intimately acquainted with him; that ^ ]mew. uothjng about the case, and had not formed or expressed an opinion as to it. After the trial five affidavits were read showing the acquaintance between the plaintiff and the juror, and which plaintiff in error claims show an intimate acquaintance. Neither an acquaintance nor an intimate acquaintance with a party to a suit renders a juror incompetent. It does not necessarily show that the juror would not be impartial. It would depend on the moral character of the man, and his mental organization, what effect his intimacy might have on his judgment, even if this intimacy is caused *293by strong friendship, which is not always the case. Intimacy frequently grows out of business relations, and is strengthened by habit, and may exist with envy and dislike. This may not be a very amiable feature, but it is true. The fact of intimacy does not of itself disqualify a man as a juror, though in most cases it would cause a peremptory challenge of such a man. .The most that can be claimed then, is, that the .answers of the juror misled the counsel by their falsehood. It is not necessary to inquire whether that would be a good cause for a new trial, because we are not convinced that the facts stated show even an intimate acquaintance with the plaintiff on the part of the juror. It is shown that he frequented the .saloon of the plaintiff as often as once a week; had been seen to drink there, arid with plaintiff; and had played cards in the same company; and these acts had continued for a year or more before^ the trial. Now all these facts.hardly show an intimate acquaintance. Certainly the facts may exist without any intimacy. Again, what constitutes intimate acquaintance is not so clearly defined in men’s minds that the juror might not truthfully say that he had no intimate acquaintance with the plaintiff, even if counsel should think otherwise on the same facts. We 'cannot say from the record that the juror answered untruthfully, and’ so all semblance of error on this point vanishes. The motion for a new trial was properly overruled. The judgment is affirmed.

All the Justices concurring.