City of Guthrie v. Shaffer

• Decision Date: 30 July 1898
• Citation: 54 P. 698,1898 OK 39,7 Okla. 459
• Parties: CITY OF GUTHRIE v. LUCY E. SHAFFER
• Court: Oklahoma Supreme Court

1898 OK 39

54 P. 698

7 Okla. 459

CITY OF GUTHRIE v. LUCY E. SHAFFER

Supreme Court of Oklahoma

Decided: July 30, 1898

Syllabus

¶0 1. PLEADING--Petition--Motion. When a petition alleges facts sufficient to constitute a cause of action, but is not sufficiently definite and certain, the defect must be attacked by motion. A demurrer will not suffice.

2. JURORS--Qualification--Error. It is not error for the court to excuse one from a jury, in an action for damages for personal injury against a city, when such person shows on his voir dire that he is a resident citizen and taxpayer in said city, such person having an interest in the cause on trial; and, even if such person were not a resident citizen and taxpayer of said city, it was not prejudicial error for the court, on a challenge for cause, made by the plaintiff, to excuse him, when the record shows that other competent jurors were selected, examined, and impaneled, as provided by law. A party to a suit has no vested interest in a particular juror. All that he is entitled to is that the jurors be competent, selected as provided by law, and that they be not prejudiced.

3. WITNESSES--Persons non Compos. The statutes, by "persons of unsound mind," as used in section 335, Code Civ. Proc. St. Okla. 1893, relating to the competency of witnesses, mean persons whose minds are so defective that they cannot correctly relate facts, and do not understand or realize what they are saying or doing. If one is sufficiently intelligent to understand the nature of an oath, and can correctly relate facts and circumstances, he should be permitted to testify. The trial court must determine, on examination of the witness, and from other evidence, if necessary, as to whether or not he can do that, and the jury alone must determine the weight to which said testimony is entitled.

4. EVIDENCE--Weight of--Rule Applied. The defendant objected to the plaintiff's testifying in her own behalf, on the ground that she was of unsound mind. Evidence was introduced tending to show her mental condition. The objection was made by the defendant, and a part of such testimony taken in the presence and hearing of the jury. The court gave the following instruction, to the giving of which defendant excepted: "Testimony is before you tending to show that since the time of plaintiff's injury her mind is somewhat impaired, and you are instructed that, in determining the weight to be given to her testimony, you should take into consideration the testimony tending to show the mental condition of the plaintiff at this time, and from such testimony, together with her own statements and evidence as to how the accident occurred, give to her testimony such weight as in your judgment the same is entitled to." Held, that such instruction correctly stated the law, and that the giving thereof was not error.

5. SPECIAL INTERROGATORIES. A special interrogatory requesting the jury to "state the condition of the street crossing, at the place of the alleged accident, on June 19, 1895," is not a proper interrogatory to submit to a jury. Where a special question of fact is submitted to a jury, the wording of the interrogatory should be clear and concise, and of such a form that they can give a direct answer thereto.

6. JUDGMENT--Not Disturbed on Appeal, When. Where the evidence reasonably supports the findings of fact of the trial court, such findings will not be disturbed on appeal. (Gillette v. Murphy, this volume, p. 91.)

Error from the District Court of Logan County; before Frank Dale, District Judge.

Action by Lucy E. Shaffer against the city of Guthrie. From a judgment for plaintiff, defendant appeals. Affirmed.

Bayard T. Hainer, for plaintiff in error.

Lawrence, Huston & Huston, for defendant in error.

BURWELL, J.:

¶1 Lucy E. Shaffer, on November 30, 1896, commenced her action in the district court of Logan county against the city of Guthrie for damages in the sum of $ 10,000, for personal injuries received from being thrown from her cart while driving over a certain alleged defective and dangerous crossing. Issues were joined, and a trial had, which resulted in a judgment for plaintiff in the sum of $ 1,010. From this judgment the city appeals to this court.

¶2 I. The first assignment of error is that the court erred in overruling defendant's demurrer to plaintiff's petition. We think that there is no merit in this contention. The petition seems to contain all of the necessary allegations. It sets out the defective and dangerous condition of the crossing; the knowledge of the city of such condition, and its willful negligence in failing to repair the same; the manner in which the plaintiff was hurt, and her ignorance of the dangerous condition of the crossing, and the exercise of ordinary care at the time on her part; the fact that she had presented her claim to the city council, and its refusal to pay the same or any part thereof; the injuries received by her, and the items of damage, together with other necessary allegations. The petition was not as specific in some respects as it might have been, but, as no motion was filed to require plaintiff to make her petition more definite and certain, it is not necessary to consider that question.

¶3 II. It is insisted that the court erred in excusing one C. Y. Castenian from the jury, on the challenge of plaintiff. The examination of the juror is quite long, and can. not conveniently be given in detail; but the substance of his answers was to the effect that he lived in Guthrie with his wife and children; that he had given all of his money to his children, who were of age, and that they had purchased property in the city, and had taken the title thereto in their own names; that his children were in business, which had been started with his money; that they all worked together, and held their possessions in common--paid all taxes and expenses out of the business--and that all got their living out of the profits.

¶4 Section 282 of the Code of Civil Procedure of the Statutes of Oklahoma of 1893 provides "that an interest in the cause" shall be ground for challenge. The party called as a juror, in answer to the direct question, "Do you own any property upon which you pay taxes?" answered, "Yes." The juror was being examined as to property in the city of Guthrie, and, while the question asked was not in express words confined to that city, we think no other construction could be placed upon it. The examination clearly shows that Castenian was a resident citizen and a taxpayer. That being true, was he disqualified?

¶5 The case of Gibson v. City of Wyandotte, 20 Kan. 156, is squarely in point. It was shown by the evidence of four of the jurors, while being examined in their voir dire, that they were each residents, citizens, and taxpayers of the city of Wyandotte. The plaintiff challenged each of them for cause, which challenges were by the court overruled. The supreme court said:

"We think the court below erred in overruling plaintiff's challenges. Said jurors were not competent to hear and determine this case. They were each personally interested in the result of the suit. We have no statute attempting to make such jurors competent, while the statute excluding jurors who have 'an interest in the cause' (Gen. St. p. 680, sec. 270) would render them incompetent. The common law would undoubtedly exclude such jurors. At common law, jurors were required to be omni exceptione majores. And the great weight of authority, if not all authority, would exclude jurors interested in the cause as these jurors were." (Citing, Diveny v. City of Elmira, 51 N.Y. 506; Wood v. Stoddard, 2 Johns. 194; Fine v. Public Schools, 30 Mo. 166, 173; Eberle v. Board, 11 Mo. 247; Mayor of Columbus v. Goetchius, 7 Ga. 139; Russell v. Hamilton, 3 Ill. 56; Watson v. Tripp, [Sup. Ct. R. I.] 15 Am. Law. Reg. [N. S.] 282; Bailey v. Town of Trumbull 31 Conn. 581; Com. v. Ryan, 5 Mass. 90; Cleage v. Hyden, 6 Heisk. 73.)

¶6 If Castenian was a resident, citizen, and taxpayer of the city of Guthrie, he was disqualified on account of interest in the cause being tried; but, even if he were not a resident, citizen, and taxpayer, but were in every way qualified, it was not error for the court to excuse him, unless by so doing the defendant was prevented from having a fair trial, and that is not claimed. The trial court is vested with a wide discretion in the trial of a cause, and, unless there is a clear abuse of such discretion, the judgment of the lower court will not be disturbed. The demeanor of a juror while being examined sometimes speaks louder than the words he uses in answering the questions. All such matters are before the trial court, and it can and it is its duty to consider them. Before the verdict will be disturbed, the defendant must show that it was prevented, by the action of the court, from having a fair and impartial jury. Nowhere in the record does it try to make such a showing. Errors that will secure a reversal of the judgment are substantial errors. They must be errors that prejudice a party's right, and not little irregularities, that creep into almost every trial. In the case at bar the defendant must have been satisfied with the jury that tried the case, because it only exercised one of its peremptory challenges. If the defendant was given a legal jury--a jury that was fair and unbiased,-- that is all it was entitled to under the law. One has not a right to have his cause tried by a particular juror. All that he can insist upon is that the jurors be competent--selected as prescribed by law--and that they be not prejudiced. It is said in Thomp. & M. Juries, sec. 271, that:

"It is sometimes supposed, especially upon criminal trials, that, even before swearing, a party may acquire a vested interest in a juror. But, as observed by Lord Campbell, C. J.: 'In truth and according to law, there is no necessity nor right that a prisoner shall be tried by particular jurymen, till the prisoner has been

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