Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
This is an appeal from a judgment for the defendant in a personal injury action brought under the Jones Act, 46 U.S.C.A. § 688, and tried by a jury.
The first trial of this case in 1946 resulted in a verdict for the defendant, D.C.W.D.Pa.1947, 70 F.Supp. 1016, which was reversed by this court because of error in the admission of certain evidence. 3 Cir., 1948, 165 F.2d 777. Before the constitution of the jury for the new trial of this cause in 1950, the plaintiff challenged the array of jurors by a motion to strike alleging that the entire panel had been improperly selected, but this motion was denied by the Chief Judge of the District Court without hearing evidence. W.D.Pa.1951, 100 F.Supp. 494. Just before commencement of the trial, a supplemental motion to strike the panel because it had allegedly been subjected to surveillance and investigation by unauthorized persons was filed, but this motion also was summarily denied by the District Judge assigned to hear the case. At the trial that followed, a verdict was again rendered for the defendant. The plaintiff then moved for a new trial on the ground, among others, that the court erred in failing to grant a hearing on the plaintiff's original and supplemental motions to strike the jury panel. Relying on the ruling of the Chief Judge on the original motion and on his own previous disposition of the supplemental motion, the District Judge denied the plaintiff a new trial. D.C.W.D.Pa.1951, 100 F.Supp. 493.
On appeal, after deciding that the other points raised did not constitute reversible error, this court directed that "[the] judgment of the District Court * * * be vacated in order that the case may go back for hearing on the plaintiff's objections to the selection of jurors and the alleged intimidation of them" inasmuch as a factual basis for the disposition of these objections was necessary. To facilitate the hearing on remand, this court then stated that the plaintiff's case could "be properly developed if * * * [she] shows present conditions of the type * * * [she] claims existed at the time of these motions and then shows continuity between the methods used now and the practices of that time." Dow v. United States Steel Corp., 3 Cir., 1952, 195 F.2d 478, 481, 482.
At the hearing which ensued before the court below on the method of selection of the jury panel, counsel for both parties with the approval of the court agreed that the "[court] * * * take the record in the Nelson case as the basis for its findings and * * * adopt the evidence, the exhibits, the rulings of the [court], and the decision of Judge Stewart as its own." The Nelson case was a criminal prosecution in the court below for violation of the Smith Act, 18 U.S.C. § 2385, in which there had been a hearing and evidence taken on a similar motion to strike the jury panel, and that motion had been denied by Judge Stewart in an opinion which was filed shortly before the agreement in this case was made. United States v. Mesarosh, D.C.W.D.Pa.1952, 13 F.R.D. 180. On the issue concerning surveillance of the jury, evidence was taken at the hearing in this case. Thereafter, the court below ruled on the first issue that the method of jury selection was proper, adhering to the conclusion of Judge Stewart without making separate findings, and on the second issue, held that there had been no intimidation of the jurors. D.C.W.D.Pa.1952, 108 F.Supp. 88. This appeal followed.
We shall first discuss the questions, raised by the plaintiff's motion, concerning the methods of selection of jurors in the Western District of Pennsylvania. The evidence adduced to establish these methods pertains primarily to a period after the trial at which the plaintiff challenged the array assembled to try her case. However, this court in remanding for a hearing on the challenge consented to the use of evidence of selection methods at times after the plaintiff's trial if continuity of practices could be shown. Although the plaintiff has not established such continuity, she has chosen to rest her case on the later practices and the defendant, who also consented, is in no way prejudiced since it is evident that any change that did occur in the selection methods during the interim was a change for the better so far as selection procedures go. Consequently, we will consider the case primarily on the basis of the evidence of the later practices now before us.
In the selection of jurors, the clerk of court, or his deputy, and a commissioner, appointed by the court as a "well known member of the principal political party" opposing the party of the clerk or his deputy, are the responsible officials. 28 U.S.C. § 1864. Jurors, to be qualified for selection, must be twenty-one years old, citizens and residents of the judicial district, and must have the usual physical, mental and linguistic capacities, must not have been convicted of a felony, and must be competent "to serve as a grand or petit juror by the law of the State in which the district court is held." 28 U.S.C. § 1861. The qualifications for jury service under the laws of Pennsylvania, which are pertinent here, are substantially the same as those under the federal law. See 17 Purdon's Pa.Stat.Anno. § 1279 and § 1333. From a list of qualified individuals compiled by the clerk or his deputy and the jury commissioner, these officials draw by chance as prescribed by statute the names of the individuals to constitute particular jury panels. See 28 U.S.C. § 1864.
In this case, it is the method of selection of names making up the master list from which panels are drawn that is important. Evidence on this issue was primarily elicited from five witnesses who had served either as the jury commissioner, the clerk of court, or the clerk's deputy. Edward Snodgrass, Jr. testified that he had served as jury commissioner for thirteen years prior to July 31, 1950, when he left office. During that period, he maintained his lists by soliciting from various sources the names of prospective jurors. Each such prospective juror was sent a form questionnaire, and if that was returned and revealed that the individual was qualified, his name was added to the master list. Initially, the sources for the solicitation of names were largely the personal acquaintances of Snodgrass in the District. He requested names from people he had known in business. Moreover, names were obtained from various organizations where he had contacts, such as the Chamber of Commerce, banks, a post of the American Legion, and an association of the Veterans of Railroads. Snodgrass was a member of the Free and Accepted Masonic Order and was a trustee of the diocese of the Episcopalian Church, and names were obtained from both of these sources. In addition, he procured names from postmasters throughout the District. The number of names that were obtained from all of these sources remained undetermined at the hearing except that it was shown that the names of twenty-six individuals came from the banking contacts. However, the greatest source of names, according to Snodgrass, was the former jurors from whom new names were obtained in the following manner: "If I needed names in Lawrence County, for instance, I would particularly locate a person or persons that seemed very intelligent, that understood what they were doing, and then I would ask that person to give me names * * *." The next greatest source was volunteers for jury duty who were of "all types." When he was asked several times as to whether he solicited the names of particular types of individuals, Snodgrass replied: "I don't know that they were. I wasn't looking for any particular kind or type, * * * - just that they were eligible citizens and in the places where we needed names out of the eighteen counties in Western Pennsylvania"; "I was not looking for any one class"; "I didn't ask any organizations as organizations. That wasn't my purpose. I only wanted enough names to make the necessary panel, and when I had them that is all there was to it." Snodgrass testified that he did not solicit names from labor unions and that the only source he knew that submitted the names of union men was two former jurors employed at a local steel plant. In regard to obtaining the names of Negroes, Snodgrass had contacts with members of that race through business, participation on a board of religious education, and through working on a local traffic committee. He stated that he had obtained names of twenty or thirty Negroes from two elevator operators in the federal building and sixty or sixty-five from a Negro to whom he had been referred. As to whether the names of other Negroes were submitted, Snodgrass testified that "there were probably colored persons' names given to me that I didn't know. I wasn't inquiring as to their color * * * color made no difference." If Snodgrass knew that an individual was a Negro either from the answer to a question regarding race on the questionnaire or otherwise, the file card of that individual would be marked "Col'd", and he testified that this was done to insure that there would always be more than one Negro on any panel having Negroes "so that they might be together, if they chose to be, to go out to lunch together." In regard to obtaining the names of individuals of particular religions, Snodgrass testified that he contacted no Jewish or Catholic organizations.
In choosing the names from the master list to go into the jury wheel Snodgrass testified that his selection practices were generally as follows: "Well, after I saw them, perhaps age, perhaps I would see, 'well, this man is a farmer, and this man has a store in Waynesburg, and this man is a miner; that is fairly good; I will take those three men.' That is how I would decide." After a person had served on the jury, his card was sometimes marked by Snodgrass to indicate whether he was a "good juror". Snodgrass testified as to his criteria of a "good juror" as follows: "Regular in attendance, that didn't come up and be drunk, or talk in the halls, or do things like that, * * *." In choosing the names of former jurors to go into the jury wheel, these comments were considered by Snodgrass.
Snodgrass was followed in office by William L. Potts who served as jury commissioner from December 21, 1950 to January 10, 1952. Snodgrass had left approximately three to four thousand names in the file, and in order to bring that file up to date, new questionnaires were sent out to all of these. About thirteen hundred replies were received, and approximately that number were retained in the file by Potts. In obtaining new names Potts in substance followed the system that had been used by Snodgrass. Approximately one to two hundred new names were obtained by personal contact with various acquaintances, and about two hundred names were secured by correspondence with acquaintances. Typical of the sources with which Potts corresponded to get names are the following: two names were obtained from a friend who was the manager of a building; an unknown number were gotten from the manager of the local baseball team; an unspecified number were procured from Potts' brother-in-law who was the superintendent of maintenance at a plant; eight names were given Potts by a college classmate whose husband was an engineer; eleven names were obtained from a farmer known through business; and three names were secured from a friend who was a retired accountant. In addition, names were obtained from the American Legion Post of which Potts was a member, from state and federal court judges in the District, postmasters, and like sources. From one hundred to one hundred and fifty names were also obtained from volunteers. All in all, four to five hundred names were procured by these means. Three hundred of these persons replied to questionnaires sent them, and two hundred and fifty were deemed qualified and were added to the list. This made a total list of approximately fifteen hundred and fifty prospective jurors when the new names were added to the thirteen hundred names carried over from Snodgrass.
Potts testified that he relied on acquaintances as the sources of names because practically it was the most effective way to obtain jurors who were willing and able to serve, and when examined as to whether he sought particular types of jurors, Potts replied: "I think you are trying to put it to me as if I ran around looking for various people, which is wrong. It is just like I would walk out on the street here and some man would say, 'Can I get on this jury?' or 'How do you do it?' And that is the way these contacts were made. I didn't personally put myself out and run all over the place looking for them. I didn't have the time, to begin with." Once a name was obtained, the decision as to whether the individual was added to the list in no way depended on the source from which the name had been obtained but was based solely on the information in the questionnaire. Potts testified that he did not solicit names from nationality group organizations or from labor unions, but he did say that a majority of the one to two hundred people personally contacted were union members. Likewise, Potts did not ask for names from Negro organizations but did obtain the names of Negroes from individual Negroes he knew.
After Potts, Dorothy Kopp Marshall next took office as jury commissioner on March 22, 1952. The names of one hundred and ninety individuals to whom questionnaires had not been sent were left her by Potts, the names having come from lists submitted by postmasters and a firemen's relief association, and she sent questionnaires to these, adding those qualified to the lists. At the time of hearing, she had sent out twenty other questionnaires, and two of these went to individuals suggested by the Chief Judge of the court below, two to individuals who had volunteered, and the remainder ...