This is an action for libel. The plaintiff had a verdict and judgment in his favor for the sum of one dollar. The appeal is by the plaintiff from an order denying him a new trial.
The appellant contends that the order should be reversed because his challenge to William V. Bryan on his examination touching his qualifications to act as a juror was denied, and he was therefore compelled to exercise a peremptory challenge on said Bryan, and this is the only point made for a reversal.
The challenge to Bryan was upon the ground "that he is in a state of mind evincing bias against the plaintiff," and was based on subdivisions 1 and 7 of section 602 of the Code of Civil Procedure.
The testimony of the juror was to the effect that he was in the newspaper business, was the editor and proprietor of the Traveler. He associated actions for libel "in somewhat the same character as speculations," and felt that in many instances they were unwarranted by the facts. He seemed to have this same opinion of "any kind of damage suit." He thought the fact of his being a newspaper man and his adverse opinion of damage suits might create a prejudice in his mind and make him unfit to act as a juror. He did, however, say *Page 423 in response to questions that he would try the case upon the evidence and upon the law given by the court, meaning no doubt that he would be guided by the instructions of the court as to the law of the case, and beyond this would consider only the evidence produced in court. He seems to have had no acquaintance with the parties to the suit and no knowledge of the facts involved in the case.
Whether a prospective juror is fair and impartial and should be allowed to sit in the case is a mixed question of law and fact to be determined in the first instance by the trial judge. This court should interfere with the determination of that question only when the evidence adduced on the voir dire is of such a character that it can be said from it, as a matter of law, that the juror is so prejudiced or biased in the case that he will not be a fair juror. (Reynolds v. United States, 98 U.S. 145;McCarthy v. Cass Ave. etc. Ry. Co., 92 Mo. 536; Baker v. Borello,136 Cal. 160.) In this connection we should not overlook the fact that the trial judge, with the proposed juror before him, is in a far better position to judge of his fairness, and of the probable effect that any alleged bias may have upon his decision, than this court can be placed in to judge of the same question. The trial judge sees as well as hears the juror; this court can only read what he has said. And while this court will set aside the action of the trial court in accepting an obviously unfair juror, we do not think the case before us is one of that kind. If what the juror evidently meant to say, and in effect did say, — that he would try the case on the evidence adduced in court uninfluenced by the fact that he was a newspaper man, and disregarding any feeling that this kind of a case was sometimes maintained for purposes of speculation, — was true, then he was a fair juror, and if the trial judge believed from what he said and the way in which he said it that he was not biased or prejudiced, then it was the duty of the trial judge to deny the challenge, and there was no error in so doing. Several cases are cited in support of appellant's contention, but most of them are based upon facts entirely different from the present case. The case cited most nearly resembling this one is Quill v. SouthernPacific Co., 140 Cal. 268. In that case, however, the evidence of the prejudice of the jurors was much stronger than here, and besides the jurors there refused to state that *Page 424 they would be bound by the evidence as in ordinary cases, but thought, on the contrary, that their prejudice against the class of cases to which that case belonged would color their verdict. Here the answers of the juror tended to show that he would be bound by the evidence, and in that respect the two cases are clearly distinguishable.
We advise that the order appealed from be affirmed.
Chipman, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is affirmed.
Van Dyke, J., McFarland, J., Henshaw, J., Lorigan, J.