BURKE v. HARDIN

BURKE v. HARDIN
1957 OK 157
313 P.2d 1098
Case Number: 37475
Decided: 06/25/1957
Supreme Court of Oklahoma

E.J. BURKE, PLAINTIFF IN ERROR,
v.
RUFUS HARDIN, MINNIE COX AND ALMA COX, DEFENDANTS 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 defendants in error.

CORN, Vice Chief Justice.

¶1 This is an appeal from a judgment rendered upon a jury verdict, in the fourth successive case tried (November 30, 1955) against the defendant at the same term of court, and involved the same issues as Burke v. McKenzie, Okl., 313 P.2d 1090.

¶2 Only one of the twelve jurors empaneled to try the cause had not sat in a previous case. Of the remaining jurors two had sat in one of the other cases, three had signed verdicts in two cases, and the other six had participated in all three cases which had been tried. The decisive question in this appeal is controlled by our decision in Burke v. McKenzie, supra.

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