The Birmingham age-herald., 1909-07-01
ELEVENTH MAN REFUSED
 TO ALLOW OVER S10,000
Ten Jurors Issue Statement Express ing Regret for Large Expense to . the County With Nothing
 Accomplished.

Circuit Judge A. o. Lane and reported that they were unable to agree upon a verdict, consequently Instrial was de- clared.
 The report of the Clabaugh Van Hoose jury was received yesterday afternoon after the body of men had been deliberating over the case for over 50 hours, and from all accounts the fight of lone juryman was one of the most stubbor imaginable. Unable to agree upon verdict the jury in the famous case filed into Judge Lanes court yesterday morning at II o'clock to be enlightened on certain points which wereR at issue between the jurors. c. A. Rivers, the chosen foreman of the jury, asked Judge Lane if the jury could return a verdict against the Southern Wholesale Gro cers association without assessing judgment against MT. VanHoose, the defendant in the case. Judge Lane in formed the jury that MT. VanHoose was the defendant in the cause at bar. The second point raised was that of whether or not MT. VanHoose was re- sponsible for the acts of the associa- tion. In reply to questions bearing tn this subject Judge Lane defined con spiracy He stated that if the evil dence showed that there had been a conspiracy between one or more per- sons to unlawfully or wrongfully fn- jure Nthe plaintiff then all of the asso- citation would be subject to damages.
 Juror Kennon who it is learned, was the man who tied up the jury asked the court to define punitive dam ages, which was done at length by the court. At the suggestion of the de- fendants attorney Judge Lane ex plained that the question of punitive damages was left to the discretion of the jury
 Back To Work. After having been instructed on these points the jury filed back to the jury room on the fourth floor of the courthouse to further consider the case. However no agreement was ever reached and shortly after o'clock the body reported that it was hopelessly divided and the mistrial was declared. It was learned yesterday afternoon that the fight in the jury room was quite a remarkable one in several re- spects. As was stated in The Age Herald yesterday the first ballot taken in the jury room showed that 10 men stood for verdict in favor of MT. Clabaugh. while one held out on the ground that he was unwilling to return verdict
 
 was for this reason that Judge Lane was asked whether )or not MT. Van Hoose was responsible, as president, for i the acts of the association.
 A very remarkable feature of the ! balloting was the facU that on the first ballot seven members of the jury stood in favor of giving the plaintiff the full amount of damages sued for, $130,000 Three men stood in favor of fixing the damage at $100,O00, while Juror Kennon was willing to give the plaintiff only s5000 damages. Standing Slightly Changed. The standing of the jury was slightly changed Tuesday morning, when the seven members who stood for $130,0O0 damages agreed to meet the decision of three others and fix the damages at s1O0,0O0. Kennon, however stuck to his contention that it would be improper to return a large yer dict against MT. VanHoose personally
 After being instructed yesterday morn ing by Judge Lane, Juror Kennon agreed to assess the damages at $lO,O0O, but the remaining jurymen contended that this amount was grossly inadequate under the undisputed evidence in the case and mistrial resulted.
 Yesterday afternoon c. A. Rivers, fore man, was authorized to issue statement in behalf of the concurring jurymen. The card written by MT. Rivers is as follows:
 Jurymen's Statement.
 "The undersigned, foreman of the jury, before which was tried the case of Hin ton G. Clabaugh vs. James A. VanHoose. has been authorized to make this state- ment on behalf of the following 10 jurors:
 "T. M. ALLEN, JR.,
 "R. l.. BUSBY,
 "WILLIAM DEW,
 w F. COLEMAN,
 "C. HUFFSTUTLER,
 "A. D. MKINNEY, I'll. c. NELEMS,
 "BOYD KICKS,
 "C. A. RIVERS,
 t'W. M. WENTWORTH.
 'Eleven jurors tried the case, the twelfth man having been too i'll to proceed with the hearing. The one juror who could not agree with us on the amount desired to assess what the rest of us con- sidered grossly inadequate damages. Shortly before noon today Wednesday, he expressed his willingness to award plain tiff S1O00O, but as we considered that alto- gether inadequate under the evidence, we could not agree. The majority of the jurors were for the full amount sued for. but we would have been able to agree without difficulty had this eleventh juror been willing to agree to fair sum- The
 
 grossly inadequate under the undisputed evidence in this case.
 ''This statement is made in justice to the jurors above named, who greatly re- great that the county has been put to such great expense and so much time lost to no purpose. "C. A RIVERS,
 'Foreman." June 30 1909
 Federal Court Trial.
 A mistrial having resulted in the state court, 1t is probable that the suit insti- stuted against the Southern Wholesale Grocers' association in the federal court will come up before the suit against Mr VanHoose is heard again. It Is not im- probable that the federal court will be heard this fall.
 MT. Clabaugh Is suing in the federal court here for $150,00O damages, alleging that he was forced out of the wholesale grocery business by the Southern Whole sale Grocers association which he specifl- cally charges Is a trust or combine fixing and maintaining prices in restraint of trade, and in violation of the Sherman antitrust law.
 The suit in the circuit court, which was closed yesterday, is considered to have been one of the most interesting and most skillfully handled cases ever on trial in Jefferson county courts Interest in the outcome of the suit was manifested throughout the country.