Before GOODRICH and HASTIE, Circuit Judges, and MODARELLI, District Judge.
This is a suit under the Jones Act, 46 U.S.C.A. § 688, for damages claimed to have been suffered by the death of Paul Dow because of the defendant's negligent failure to provide Dow with reasonable medical care when he was ill on the defendant's steamer, "James E. Lose." The case has been before this court before, Dow v. Carnegie-Illinois Steel Corp., 3 Cir., 1948, 165 F.2d 777, and the recital of the facts previously given need not be repeated. The case was tried to a jury and a verdict returned for the defendant.
So far as the facts are concerned the case is one where the jury could well have found the way it did. Paul Dow became ill while working on the defendant's vessel. There is no doubt of that.But it is quite another thing to say that the employer unreasonably failed to provide him with medical attention, especially in view of the sick man's obvious reluctance to be relieved of duty and sent to a hospital. We are left, therefore, with the points raised in the appeal which have to do with the conduct of the trial.
Error is assigned because the jury which tried the case was an improperly selected jury. The challenge is to the "array." Plaintiff, through counsel, says that the jury panel was improperly chosen. The motion of the plaintiff was to strike the entire jury panel. The reasons therefor may be quoted in the words of the plaintiff's attorney. He says:
"1. The method and procedure of selecting trial jurors in this Court does not comply with the law.
"2. The method and procedure of selecting and qualifying trial jurors is not in conformity with the decisions of the Supreme Court.
"3. The panel of jurors and their method of selection indicates that they are not representative of the community nor do they constitute a cross-section thereof.
"4. The jurors have been selected in a discriminatory, unfair and partial manner and excludes either deliberately or by necessary implication important elements of the community such as naturalized foreign born citizens, Negroes, veterans, labor people and many others."
In addition there was a supplemental motion to strike: "for the additional reason that some of the members of the jury panel have been under surveillance and investigation by unauthorized persons and jury investigation lists have been used by counsel."
The original motion and the supplement thereto were both dismissed without hearing in the District Court. The Chief Judge of the Court to whom the motion was originally made filed an opinion, D.C.1951, 100 F.Supp. 494, describing the selection of jurors in the Western District of Pennsylvania. But this opinion was not, obviously, based on findings of fact in any hearing at which the plaintiff had presented any testimony.
The supplementary motion based upon the alleged surveillance of jurors was likewise dismissed without hearing. There was, however, prior to trial, a questioning of the prospective jurors. The questions were asked by the clerk upon interrogatories propounded by plaintiff's counsel, and over defendant's objection. One of the interrogatories asked, "Has any person interviewed you, or any member of your family or neighbor or acquaintance in connection with your service on the Federal Jury?"
In response to this question some of the jurors raised hands and gave answers. The following is typical: "I was told by a neighbor who lived in the apartment upstairs that she had been approached by someone who claimed to be a Jury investigator. She was asked several questions. I don't know what answers were given."
It appeared to the trial judge that none of the jurors who had been asked any question had served on this panel and he, therefore, dismissed the allegations as irrelevant. We cannot agree with that. After all, the questions about investigation were asked in the presence of all the prospective jurors for this case. If there is anything to the surveillance or intimidation point, it could well be that all the jurors would have felt whatever pressure there was, regardless of whether they were actually asked questions by the alleged ...