This action was brought under the civil damage act to recover damages against defendant for the loss of the means of support of the plaintiff, caused by the death of her son while intoxicated, which intoxication the plaintiff alleged was caused in whole or in part by intoxicating liquor fur- , nished him by defendant. The only question which it is necessary to examine upon this appeal is the one raised by the plaintiff’s exception to the ruling of the trial justice sustaining the defendant’s challenge to the proposed jurors George C. Graham and W. P. Tuller, who were members of the panel ■of jurors in attendance upon the court. Graham, when, called, was challenged by defendant, and the following proceedings were had: He was sworn as to his competency as a juror, and was examined by defendant’s counsel, and testified that he did not think much of the business of selling liquor; that he liada prejudice against it; and that, were he to sit as a juror in the case, he would go into the box with a prejudice against the business. He further testified that he had no prejudice against the defendant; that he could sit and hear the evidence, and give an impartial verdict according to the evidence in the case, irrespective of what he thought of the business itself. The trial justice allowed the challenge, and excused the juror, and the plaintiff excepted. Like proceedings were had, and testimony to the same purport was given, when Tuller was called, and there was a like ruling by the court, and an exception by the plaintiff. The parties exhausted their peremptory challenges. A.panel of jurors was secured, the trial proceeded, and resulted in a verdict for the defendant.
The trial judge was required to decide the question of fact, “Were the proposed jurors indifferent between the parties?” That question, section 1180 of the Code provides, must be tried and determined by the court only. Either party may take an exception, and the determination •of the court is reviewed in the same manner as when an issue of fact presented by the pleadings is tried by the court, and the case is required to contain the matters necessary to present the facts upon which the determination excepted to was based. In impaneling jurors a liberal discretion is vested in the trial court. Such discretion conduces to the just and correct administration of la w in the trial of causes by j ury. Y et litigants are entitled to the benefit of the provisions of law governing the impaneling of juries. Section 1166 of the Code of Civil Procedure provides that the 12 persons who appear as their names are drawn and called, and are proved as indifferent between the parties, and not discharged or excused, must be sworn to constitute a j ury to try the issue. The court cannot arbitrarily excuse a proposed juror, who is in all respects competent to sit. If the facts presented fail to prove that Graham and Tuller were disqualified to sit as jurors in the case it was ■error to exclude them; and it was so held in the case of Hildreth v. City of Troy, 101 N. Y. 234, 4 N. E. Rep. 559. The ground of challenge in that case was that the juror was incompetent because he was a resident and tax-payer in the city of Troy. The challenge was sustained. The charter of the city provided that the grounds mentioned did not disqualify a person as a juror in *710a casein which the city was defendant; and Justice Andeews, in his opinion,says: “Jurors differ in intelligence, judgment, and fitness to actas jurors. It is, we think, the legal right of a party to have the jury selected from the competent names in the jury-box, and that the range of selection shall not be limited by excluding, without cause, competent jurors from the panel. The law prescribes the qualifications of jurors. The court cannot add to or detract from them. It cannot itself select the jury, directly or indirectly. It cannot, in its discretion, or capriciously, set aside jurors as incompetent whom the law declares are competent, and thus limit the selection of the jury to jurors whose names may be left. If this is done, a legal right is violated, for which an appellate court will give redress.” It was a question of law that was presented for the decision of that court in the case of Hildreth v. City of Troy. In the case at bar the trial judge was required to decide the question of fact, “Was the proposed juror indifferent between the parties?” The question to be litigated in this case'was, did the defendant sell or furnish to the deceased liquor, which wholly, or in part, caused his intoxication? The propriety or morality of selling liquor was not in question, any more than were the political or religious views of the defendant. The jurors stated they had no prejudice against the defendant; that it would not require any greater evidence, in a case tried before them, when one party was engaged in that business, than if he was engaged in any other business; that they could sit and hear the evidence, and give an impartial verdict, according to the evidence in the case, irrespective of what they thought of the business of selling liquor. They were, so they testified, indifferent between the parties. Had one of the parties been a lawyer, minister, or dealer in stocks, jurors could be found having a prejudice against their business, and yet in a litigation where one of them was a party it would scarcely be claimed that a juror who entertained such prejudice was disqualified for that reason to sit in the case. A very large proportion of persons who.have arrived at their majority entertain opinions as to the propriety of selling liquor to be used as a beverage. The majority of them undoubtedly think it does not tend to elevate and improve mankind, and such an opinion is not confined to the classes not engaged in the business. Substantially every one has an opinion upon the subject. They either think it is or is not a beneficial calling. If one who, like Graham, does not think much of the business, is adjudged incompetent to sit, a person entertaining an opposite opinion ought also to be held incompetent, and jurors would necessarily have to be selected from those persons who bad never given the subject sufficient reflection to have formed an opinion, if such could be found possessing the qualifications required by section 1126 of the Code, “in the possession of his natural faculties, intelligent, of sound mind, good character, and able to read and write the English language understanding^.”
It does not seem to us that the fact that Graham and Tuller entertained a prejudice against the business of selling liquor disqualified them to sit as jurors in the case, so long as they testified that they were indifferent between the parties, and could sit and hear the evidence, and give an impartial verdict, according to the evidence in the case, irrespective of what they thought of the business. It is suggested that the trial court, having the juror before him, had a better opportunity to judge of the qualifications of the juror that the appellate court; that he saw the juror, his manner of testifying, and his appearance generally. We must, however, assume that no unfavorable im-' pressions were thus obtained by the trial court, as the case fails to so state. There is the usual certificate in the case that it contains all the evidence and proceedings in the action. If their manner and appearance afforded to the-trial court evidence of their unfitness, that fact should have been stated in the case, and would be decisive of the question before us. To go outside of *711the case, and indulge in speculations as to what might have influenced the mind of the trial court, would render nugatory the provisions of the Code providing for the review of the rulings of the trial court on such questions.
The respondent further suggests that the appellant had induced the trial court to hold that a juror was disqualified if he was prejudiced against the civil damage act, and that he had thereby established a precedent, and should he held to be estopped from objecting to the enforcement of the rule against him. It may well tie doubted if the questions were alike in principle. The jury, when impaneled, became an important part of the court, which was to be asked to enforce the law if it had been violated, and, if a juror who is opposed to capital punishment is disqualified to sit as a juror on the trial of a person charged with a crime where the punishment is death, it might, perhaps, be correctly held that a person entertaining a prejudice against the act in question is disqualified as a juror in such a case; but we do not think the doctrine of estoppel can be held to apply to such a question. The evidence, we think, failed to show that Graham and Tuller were incompetent to sit as jurors, and that it was error to exclude them, for which the judgment should be reversed. The judgment and order denying a new trial should be reversed, and a new trial granted, with costs to abide the event.
Dwight, P. J., concurs.