APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, Staley and Hunter, Circuit Judges. Hunter, Circuit Judge, dissenting.
Plaintiff, longshoreman, appeals from a judgment for defendant, shipowner, on his claim for personal injuries allegedly caused by defendant's negligence while he was discharging cargo from defendant's vessel on December 4, 1972. The judgment was based on the jury's answer to a special interrogatory finding no negligence that was the proximate cause of plaintiff's injuries.
Because of its pervasive importance, we turn immediately to plaintiff's contention that the district court committed reversible error by granting each party a fourth peremptory challenge in lieu of ruling on an objection for cause asserted by each party to a different member of the venire.
Defendant contends that we should not rule on the issue as now posed because plaintiff's counsel did not object on that ground at trial. Defendant says that plaintiff objected solely to the defendant's use of his additional peremptory challenge to strike the last black from the venire.
After each side objected to a different member of the venire for cause the court, instead of ruling on such objections, stated that it would give each side an additional peremptory challenge. Plaintiff's counsel said, "I don't want any additional strikes." The court replied: "I give you four strikes apiece. You can use it or not." We think the record supports plaintiff's objection in its present form, even though it suffers from imprecision. In any event, we conclude that cognizance should be taken of the objection because of the fundamental issue which it raises. Mazer v. Lipschutz, 327 F.2d 42 (3d Cir. 1964); cf. Smith v. Coy, 460 F.2d 1226 (3d Cir. 1972).
Title 28 U.S.C. § 1870 reads:
In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.
All challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court. June 25, 1948, c. 646, 62 Stat. 953; Sept. 16, 1959, Pub. L. 86-282, 73 Stat. 565.
The statute, in our view, provides that in single party civil litigation the court is not authorized to allow more than three peremptory challenges per side. In Detroit, M. & T.S.L. Ry. v. Kimball, 211 Fed. 633 (6th Cir. 1914), the court held that the word "entitled" in § 1870's predecessor statute was not a word of grant but rather a word of limitation, intended by Congress "not merely to give a minimum or to limit the maximum number of challenges, but finally to fix that number," id. at 636. Similarly, the legislative history of a 1959 amendment to § 1870 supports our view. In considering whether to extend to multiple plaintiffs the privilege previously granted multiple defendants to seek additional peremptory challenges, the Senate Judiciary Committee, the Administrative Office of the Courts, and the Attorney General's office all characterized the authorization of extra peremptory strikes in multiple defendant cases as "an exception to this general rule" of the "existing law [that] now permits three peremptory challenges in civil cases to each party . . . ." S. Rep. No. 848, 86th Congress, 1st Sess., reprinted in  U.S. Code Cong. & Ad. News 2594, 2594-97.
The consequences inherent in a failure to observe the statute's mandate are graphically illustrated by the undisputed facts of this case. Defendant does not challenge plaintiff's contention that defendant used its first three peremptories to challenge blacks on the venire. When he was given a fourth peremptory it was used by defendant to strike the last black. This occurred in a case where the plaintiff and his witnesses were black. Passing over any question as to possible legal limitations on the use of peremptory challenges, the reality is that their use can result in what a party legitimately feels is an unfair advantage. Since such challenges are "irrational" there is no reason to deviate from the statute.
Indeed, where a peremptory challenge is added in lieu of ruling on a challenge for cause, it may aggravate the situation. It can result, as here, in a juror serving who was challenged for cause. Thus, the white member of the venire who was challenged for cause by defendant did in fact serve on this jury.*fn1 We point this out, not to suggest that plaintiff had standing to object to the service by the juror originally challenged by defendant, but to show the potential for prejudice created by a failure to follow the statute. After all, the prospective juror challenged for cause by plaintiff might have ended up on the jury. The court's approach gave defendant an additional peremptory challenge which it clearly was not entitled to regardless of the merits of its challenge for cause. One can only speculate as to what the court would have done had only one side challenged for cause.
We conclude that, in view of the statute, it was reversible error to grant each party an additional peremptory challenge in lieu of ruling on the challenges for cause, at least in a situation where such additional peremptory was exercised by the party who ...