BURKE v. GARDENHIRE

BURKE v. GARDENHIRE
1957 OK 158
313 P.2d 1099
Case Number: 37476
Decided: 06/25/1957
Supreme Court of Oklahoma

 
E.J. BURKE, PLAINTIFF IN ERROR,
v.
TOM GARDENHIRE AND LULA GARDENHIRE, 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 plaintiffs 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 third successive case tried (November 30, 1955) against the defendant at the same term of court. The issues involved were the same as case No. 37,474, Burke v. McKenzie, Okl., 313 P.2d 1090.

¶2 Of the jurors empaneled to try the case, over defendant's objection that the jurors had sat in the previous cases wherein verdicts had been returned against defendant and so were no longer fair and impartial, it appeared that: five jurors had signed verdicts in both previous cases, while the other seven had signed a verdict in one of the other cases.

¶3 The decisive question in this appeal has been determined by our decision in No. 37,474, Burke v. McKenzie. The judgment accordingly is reversed and the case remanded with directions to grant a new trial.