BURKE v. POINDEXTER

BURKE v. POINDEXTER
1957 OK 156
313 P.2d 1097
Case Number: 37472
Decided: 06/25/1957
Supreme Court of Oklahoma

E.J. BURKE, PLAINTIFF IN ERROR,
v.
GERALD POINDEXTER, DEFENDANT IN ERROR.

Syllabus by the Court.

¶0 1. Jurors who returned a verdict against defendant in an action involving an essential question of fact were disqualified to sit in a succeeding case against the same defendant where the same question of fact was involved.
2. The discretion vested in trial courts is a judicial discretion, to be exercised under fixed legal principles, and with due regard to what is right and equitable under the circumstances.
3. Where, under facts such as disclosed herein, it appears some of the jurors would require evidence to be presented to change preconceived opinions, the trial court's action in overruling defendant's objections and qualifying such jurors as competent to serve was an abuse of discretion necessitating reversal.

Appeal from the District Court of Sequoyah County; E.A. Summers, Judge.

Suit for damages alleged to have resulted from defendant's negligence in conducting certain aerial spraying operations. Judgment for plaintiff and defendant appeals. Reversed and remanded for new trial.

Roy Frye, Sr., Roy Frye, Jr., Sallisaw, for plaintiff in error.

J. Fred Green, Fred D. Green, W.S. Agent, Sallisaw, for defendant in error.

CORN, Vice Chief Justice.

¶1 This is an appeal from a judgment, rendered upon a jury verdict, the fifth successive case tried (December 1, 1955) against defendant at the same term of court, and involved the same issues as Burke v. McKenzie, Okl., 313 P.2d 1090.

¶2 Of the twelve jurors empaneled to try the case one had signed verdicts in the other four cases, five had signed verdicts in three cases, one signed the verdict in two cases, two had signed verdicts in two cases and had sat on the third case, one had signed verdict and had sat in another case. One juror had not participated in any previous trial. The decisive question presented on appeal is controlled by our decision in Burke v. McKenzie, supra.

¶3 The judgment accordingly is reversed and the case remanded for new trial.