Allen v. Railway Company, No. 29215.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtFrank
Citation37 S.W.2d 607
PartiesA.L. ALLEN and FRANKIE ALLEN v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, WILLIAM J. McREYNOLDS and FORREST HUDSON, Appellants.
Docket NumberNo. 29215.
Decision Date31 March 1931
37 S.W.2d 607
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.
Division One, March 31, 1931.

[37 S.W.2d 608]

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

TRANSFERRED 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 Atl. 214; State v. Pickett, 39 L.R.A. 302.

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...

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6 practice notes
  • Jarvis v. C., B. & Q. Railroad Co., No. 29248.
    • United States
    • United States State Supreme Court of Missouri
    • March 31, 1931
    ...assigned to that crew for movement. The order is merely to move a train of cars which may or may not be in interstate commerce, depending 37 S.W.2d 607 upon whether or not the train will include one or more interstate cars. Until the train itself thus becomes an instrumentality of interstat......
  • Massman v. Kansas City Public Service Co., No. 34992.
    • United States
    • United States State Supreme Court of Missouri
    • September 17, 1938
    ...Mo.St.Ann. § 8747, p. 4691; State v. Watson, 119 S.W.2d 838 Mo.Sup., 104 S.W.2d 272; Allen v. C., R. I. & P. R. Co., 327 Mo. 526, 37 S. W.2d 607; Frank Hart Realty Co. v. Ryan, 288 Mo. 188, 232 S.W. 126; State v. Wilson, 230 Mo. 647, 132 S.W. 238. An exception is made to this rule so that "......
  • State v. Brookshire, No. 47100
    • United States
    • United States State Supreme Court of Missouri
    • July 13, 1959
    ...1055; Walter L. Lacy Co. v. National Finance Corporation, Mo.Sup., 73 S.W.2d 747; Allen v. Chicago, R. I. & P. R. Co., 327 Mo. 526, 37 S.W.2d 607; Junior v. Junior, Mo.Sup., 84 S.W.2d 909; Gruet Motor Car Co. v. Briner, Mo.Sup., 224 S.W.2d 73; Stribling v. Jolley, 362 Mo. 995, 245 S.W.2d 88......
  • Wingate by Carlisle v. Lester E. Cox Medical Center, No. 75376
    • United States
    • United States State Supreme Court of Missouri
    • May 25, 1993
    ...held that an attorney may not rely on unauthorized court customs during jury selection. Allen v. Chicago, R.I. & P. Ry. Co., 327 Mo. 526, 37 S.W.2d 607, 609 (1931); see also Lyman Field, Voir Dire Examination--A Neglected Art, 33 UMKC L.Rev. 171, 175 (1965) (interpreting Allen ). In Allen, ......
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6 cases
  • Jarvis v. C., B. & Q. Railroad Co., No. 29248.
    • United States
    • United States State Supreme Court of Missouri
    • March 31, 1931
    ...assigned to that crew for movement. The order is merely to move a train of cars which may or may not be in interstate commerce, depending 37 S.W.2d 607 upon whether or not the train will include one or more interstate cars. Until the train itself thus becomes an instrumentality of interstat......
  • Massman v. Kansas City Public Service Co., No. 34992.
    • United States
    • United States State Supreme Court of Missouri
    • September 17, 1938
    ...Mo.St.Ann. § 8747, p. 4691; State v. Watson, 119 S.W.2d 838 Mo.Sup., 104 S.W.2d 272; Allen v. C., R. I. & P. R. Co., 327 Mo. 526, 37 S. W.2d 607; Frank Hart Realty Co. v. Ryan, 288 Mo. 188, 232 S.W. 126; State v. Wilson, 230 Mo. 647, 132 S.W. 238. An exception is made to this rule so that "......
  • State v. Brookshire, No. 47100
    • United States
    • United States State Supreme Court of Missouri
    • July 13, 1959
    ...1055; Walter L. Lacy Co. v. National Finance Corporation, Mo.Sup., 73 S.W.2d 747; Allen v. Chicago, R. I. & P. R. Co., 327 Mo. 526, 37 S.W.2d 607; Junior v. Junior, Mo.Sup., 84 S.W.2d 909; Gruet Motor Car Co. v. Briner, Mo.Sup., 224 S.W.2d 73; Stribling v. Jolley, 362 Mo. 995, 245 S.W.2d 88......
  • Wingate by Carlisle v. Lester E. Cox Medical Center, No. 75376
    • United States
    • United States State Supreme Court of Missouri
    • May 25, 1993
    ...held that an attorney may not rely on unauthorized court customs during jury selection. Allen v. Chicago, R.I. & P. Ry. Co., 327 Mo. 526, 37 S.W.2d 607, 609 (1931); see also Lyman Field, Voir Dire Examination--A Neglected Art, 33 UMKC L.Rev. 171, 175 (1965) (interpreting Allen ). In Allen, ......
  • Request a trial to view additional results

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