Papernow v. Standard Oil Co. of New York , 228 F. 399 ( 1915 )

BROWN, District Judge.

After verdict for the defendant the plaintiffs petition for a new trial on the ground, first, that the verdict was against the evidence; and, second, that one of the jurors, within two years of the time of trial, had served as a petit juror in the state cour-t.

I am of the opinion that upon the evidence the jury was justified in finding a verdict for the defendant, and that the verdict was not against the weight of evidence.

[1] The second ground proceeds upon the assumption that service as a petit juror in die state court works as a disqualification to serve as a petit juror in the federal court. I am of the opinion that this contention is unsound.

Section 275 of the Judicial Code of the United States, which relates to qualifications and exemptions of jurors, is limited by the expression “subject to the provisions hereinafter contained.” Section 286, therefore, must be read in connection -with section 275, and as it deals specifically with the question of prior service, is exclusive of the provisions of the state statute on the same subject. Morris v. United States, 161 Fed. 672, 88 C. C. A. 532; Walker v. Collins, 50 Fed. 737, 1 C. C. A. 642.

[2] Furthermore, according to the great weight of authority, when the party has had an opportunity for challenge, and has not exercised the right, no disqualification of a juror entitles him to a new trial after verdict. See cases cited in Kohl v. Lehlback, 160 U. S. 293, 300-302, 16 Sup. Ct. 304, 40 L. Ed. 432; Ryan v. Riverside and Oswego Mills, 15 R. I. 436, 8 Atl. 436; Sprague v. Brown, 21 R. I. 329, 43 Atl. 636; Guckian v. Newbold, 23 R. I. 553, 51 Atl. 210.

Petition for new trial denied.