Watkins v. B. O. R. R. , 130 W. Va. 268 ( 1947 )

I agree with what is said in the Court's opinion concerning the insufficiency of the plaintiff's affidavit as a reason for setting aside the verdict. In my opinion, an objection based upon mere disqualification of a juror, as distinguished from misconduct, is waived after verdict, regardless of diligence. In this particular instance apparently neither the court nor the attorney for the plaintiff on voir dire asked the panel whether any of its members were employed by the defendant, Baltimore Ohio Railroad Company. That being a common law disqualification, the failure to inquire constituted a lack of diligence. But without regard to that, under our cases after verdict, disqualification is waived. In Ohio River R. Co. v.Blake, 38 W. Va. 718, 18 S.E. 957, the fourth syllabus reads as follows: "An objection to a juror for want of qualification comes too late after verdict." This holding was expressly approved in State Road Commission v. Young, 100 W. Va. 394,130 S.E. 478. Some West Virginia cases, as State v.Cooper, 74 W. Va. 472, 82 S.E. 358, are cases in which the disqualification was known before verdict and so state the rule, the first syllabus in State v. Hayes, 109 W. Va. 296,153 S.E. 496, reading as follows: "Exceptions to a juror, because of alleged prejudice against defendant as shown by his voir dire, come too late after verdict." However, none of our cases conflict with or overrule the Young nor the Blake case and I am of opinion that the rule therein laid down should be applied here.