Allen v. Chicago, R. I. & P. R. Co.

• Decision Date: 31 March 1931
• Docket Number: 29215
• Citation: 37 S.W.2d 607,327 Mo. 526
• Parties: A. L. Allen and Frankie Allen v. Chicago, Rock Island & Pacific Railway Company, William J. McReynolds and Forrest Hudson, Appellants
• Court: Missouri Supreme Court

37 S.W.2d 607

327 Mo. 526

A. L. Allen and Frankie Allen v. Chicago, Rock Island & Pacific Railway Company, William J. McReynolds and Forrest Hudson, Appellants

No. 29215

Supreme Court of Missouri

March 31, 1931

Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.

Transfered to Kansas City Court of Appeals.

Luther Burns and Culver, Phillip & Voorhees for appellants.

(1) The court should have granted defendants a new trial because two of the jurors were incompetent by reason of being unable to read or write or understand the English language. Secs. 6648 6654, R. S. 1919. (2) The court should have granted a new trial on the ground that the defendants were deprived of their right to a trial by a qualified and competent jury, as guaranteed them by the Constitution. Sec. 28, Art. II Constitution of Missouri.

Mytton, Parkinson & Norris, O. L. Linck and Robison & Robison for respondents.

Appellants having failed to examine the jury touching their legal disabilities, waived the right to object by their failure to use proper diligence, the qualification of a juror being a matter of exception. Orr v. Bradley, 126 Mo.App. 148; Knight v. Kansas City, 138 Mo.App. 153; State v. Wilson, 230 Mo. 647; Frank Hart Realty Co. v. Ryan, 288 Mo. 188; Vogts v. Ry. Co., 228 S.W. 530; Pitt v. Bishop, 53 Mo.App. 603; State v. Murray, 292 S.W. 437; State v. Parsons, 285 S.W. 415; State v. Greeland, 100 N.W. 341; State v. Webster, 36 So. 584; State v. Lindsey, 36 S.E. 62; West Chicago St. Ry. Co. v. Huhuke, 82 Ill.App. 404; State v. Whitesides, 21 So. 540; Dickinson v. Ry. Co., 52 A. 214; State v. Pickett, 39 L. R. A. 302.

OPINION

Frank, J.

Action by A. L. Allen and Frankie Allen, husband and wife, to recover the sum of $ 10,000 for the death of their minor child, Mary Allen. Verdict and judgment for $ 7,000, and defendants appealed.

The appeal was granted to this court on the ground that a constitutional question was involved. The constitutional question invoked by defendants is that they were deprived of their constitutional right to a trial by a qualified and competent jury as guaranteed them by Section 28 of Article II of the Constitution of Missouri. The basis of this claim is that two of the jurors in said cause who concurred in the verdict therein could not read and write the English language and did not thoroughly understand the proceedings ordinarily had in a court of justice.

This case was tried in the Circuit Court of Buchanan County. The jury law applicable to Buchanan County was passed in 1911 and appears in our statute as Article II, Chapter 53, Revised Statutes 1919. Section 6648 of that act provides, among other things, that persons who are not sufficiently acquainted with the English language to read and write the same and to understand thoroughly the proceedings ordinarily had in a court of justice, shall not be permitted to serve as jurors. Another section of the same statute makes the provisions of Section 6648 mandatory.

When the verdict was returned, it was signed by ten jurors, two of whom signed by mark. In their motion for new trial, defendants, for the first time, objected to the competency of the two jurors who signed the verdict by mark, on the ground that they were incompetent, disqualified and prohibited by law from serving as jurors, because they were not sufficiently acquainted with the English language to read and write the same, and to understand thoroughly the ordinary proceedings had in a court of justice, of which defendants had no knowledge until after the return of the verdict. It is also alleged in the motion for new trial that the incompetence of these two jurors deprived defendants of their right to a trial by a competent and qualified jury, as guaranteed to them by Section 28 of Article II of the Constitution of Missouri.

Section 6649 of said jury law provides that any person may challenge any juror for cause, for any reason mentioned in Section 6648, supra, and also, for any causes authorized by the laws of this State.

Although the jury law passed in 1911 was made applicable to counties having sixty thousand and not more than two hundred thousand inhabitants, of which Buchanan County is one, the general statutes governing juries and jurymen still apply to such counties except where such general statutes are inconsistent with the law of 1911. [Orr v. Bradley, 126 Mo.App. 146, 150, 103 S.W. 1149.] Section 6608 of the Revised Statutes of 1919 provides that "no exception to a juror on account of his citizenship, non-residence, state or age or other legal disability shall be allowed after the jury is sworn." This section of the Revised Statutes is not inconsistent with nor does it conflict with any of the provisions of the jury law of 1911. It therefore applies to Buchanan County and must be considered in determining the question before us.

It is true that if the two jurors who signed the verdict by mark were not able to read, write and understand the English language, they were not competent jurors. Section 6648 provides that a litigant may challenge a juror for cause, for that very reason. But Section 6608 provides that such an objection, to be effective, must be made before the jury is sworn. Defendants did not challenge these jurors for any cause or make any objection until after the verdict was returned and accepted. Their first objection was made in the motion for new trial. We have uniformly ruled that the qualification of a juror is a matter of exception, and where, as in this case, a party fails to question a juror as to his qualifications, when the juror is examined on his voir dire and does not challenge such juror for cause, an objection to such...