City of Jackson v. Mcfadden

Decision Date13 December 1937
Docket Number32890
Citation181 Miss. 1,177 So. 755
CourtMississippi Supreme Court

Division B


Supreme Court has power to determine for itself what the common law is, and it will not adopt such parts of the common law of England as are contrary to conditions within the state.


The mere fact that prospective juror from city is taxpayer with no interest different from other taxpayers of city does not per se, disqualify prospective juror in action against city.


The fact that prospective juror from city is a taxpayer may be basis of bias or prejudice that might, owing to existence of such bias or prejudice, disqualify the prospective juror in action against city, and, if trial judge is of the opinion after inquiry, that prospective juror is not fair and impartial, he may be excused (Code 1930, section 2030).

4. JURY.

Under statute, the excusing of prospective juror by trial judge, in exercise of discretion vested in him, is final (Code 1930, section 2030).

5. JURY.

In action against city for damages, excusing prospective jurors from city on ground that being taxpayers, of itself, disqualified them, constituted error (Code 1930, section 2030).


In action against city for damages, error in excusing prospective jurors from city on ground that being taxpayers, of itself, disqualified them, did not require reversal, where it did not appear that the jurors who were impaneled and before whom case was tried were not fair and impartial (Code 1930, section 2030).


The great object of jury trial is to secure a fair and impartial jury, and, where that is attained, judgment will not be reversed for mere error in excusing competent jurors.


Where city leased land from state to operate state fair and to use land for baseball park and football stadium, city could not escape liability for injuries sustained by spectator in fall from seat in stadium while witnessing football game on ground that maintenance of stadium was ultra vires (Laws 1930, chapter 249, section 1).


In spectator's action for injuries sustained in a fall from a seat in city-operated stadium while witnessing a football game, under evidence that stadium was constructed of removable seats, that there were no safeguards to prevent persons on top seats from falling or being thrown to the ground, that seats were left loose, that top seat was displaced when spectator arose at an exciting point in the game, and that when he attempted to resume his seat he was precipitated to the ground, negligence of city was for jury.


Where spectator was injured in fall from seat in city-operated stadium, even if spectator was thrown to ground or off his balance by another person who was trying to regain his own balance, and in doing so displaced plank which served as seat, removal of seat from its proper place because not properly fastened was at least proximate concurring cause of accident rendering city liable, as against contention that the other's conduct constituted an intervening cause.


APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER, Judge.

Action by F. L. McFadden against the City of Jackson. Judgment for plaintiff, and defendant appeals. Affirmed.


W. E. Morse, of Jackson, for appellant.

The court erred in holding that taxpayers of a municipality are disqualified under the common law to sit as jurors in a case in which a municipality is interested.

The State of Mississippi does not take the common law of England whether or no, that is, the ancient common law is accepted in the State of Mississippi only when it is reasonable and just, and where it is unsatisfactory to our conditions or repugnant to our statutes, the common law is not in force and effect.

Planters Oil Mill Co. v. Y. & M. V. R. R. Co., 121 So. 140; Y. & M. V. R. R. v. Scott, 67 So. 491, 108 Miss. 871; Interstate Co. v. Garnett, 122 So. 373, 154 Miss. 325.

The Constitution and statutes of the State of Mississippi have fixed the qualification of the jurors in the State of Mississippi.

Constitution, secs. 244 and 264; Mabry v. State, 71 Miss. 716; Sprole v. Fredrick, 69 Miss. 398, 11 So. 472; Williams v. Mississippi, 170 U.S. 213, 42 L.Ed. 1012.

The Supreme Court of the State of Mississippi seems never to have passed on this question and the reason is obvious for the reason that our Constitution and statutes fix the qualifications of the juror.

Carnaggio v. State, 109 So. 732, 143 Miss. 694.

If the theoretical basis or prejudice is to hold true, then the judges who reside in a municipality and who pay taxes to a municipality would be disqualified because of the fact that they might have bias or prejudice being taxpayers.

Jackson v. Town of Port Gibson, 146 Miss. 696.

The court held, in the case of Moore v. Dallas, 200 S.W. 870, that a taxpayer was not disqualified to sit as a juror in a suit in which the municipality was interested. The decision was rested on the view that the interest of a taxpayer of a city is too indirect, remote and contingent to render him disqualified as a juror.

Pikeville v. Riddle, 191 Ky. 231, 230 S.W. 37; City of Detroit R. R. Co., 134 Mich. 11, 95 N.W. 992, 104 Am. St. Rep. 600; Jackson v. Poole, 91 Tenn. 448.

The court erred in failing to grant the defendant a peremptory instruction.

There is no authority for the municipality operating football stadiums. In the absence of authority to operate the stadium, the power to own and operate would be ultra vires beyond the power of the municipality and if it is ultra vires, then the municipality could not be held liable for negligence.

19 R. C. L., sec. 414; 30 Am. St. Rep. 406; 34 Am. St. Rep. 25; 6 McQuillan (2 Ed.), page 208; Brown v. Ravenswood, 49 A.L.R. 1230.

The defendant should have had a peremptory instruction for the reason that the plaintiff failed to prove that the defendant was guilty of any negligence in the erection or maintenance of the stadium. The proof, as made by the plaintiff himself with his witness, W. A. Scott, shows that the city made a careful study of the type and kind of structures; that this stadium is standard equipment.

Daniels v. Jackson Infirmary, 163 So. 447.

There was absolutely no showing of negligence on the part of the defendant, City of Jackson.

City of Natchez v. Cranfield, 124 So. 656, 155 Miss. 544; Town of Union v. Heflin, 104 Miss. 689, 61 So. 652; L. & N. R. R. Co. v. Daniels, 135, Miss. 33, 99 So. 434; Public Service Corp. v. Watts, 168. Miss. 235, 150 So. 192.

New independent forces intervening between defendant's negligence and injury becomes proximate cause, if of sufficient strength to overcome and substantially supersede original force of motion.

There is no proof of negligence, no presumption of negligence, no presenting how the injury occurred, except by the testimony of Poole and that proof shows that Poole was responsible for the plaintiff's injury.

Bufkin v. L. & N. R. R. Co., 137 So. 517.

J. B. Hutton, Jr., and Robertson & Robertson, all of Jackson, for appellee.

No disqualification is shown of jurors who tried the case, and no harm shown to appellant by the acceptance of a trial jury. Hence, no reversal may be obtained.

Goins v. State, 155 Miss. 662; Jones v. State, 104 Miss. 871.

There is no vested right in any particular juror, only a right to an impartial jury.

Barnett v. Dalton, 69 Miss. 611; Head v. State, 44 Miss. 731; Gillam v. Brown, 43 Miss. 641; McGuire v. State, 37 Miss. 369; Haney v. State, 129 Miss. 486; Ferguson v. State, 107 Miss. 559; M. & S. V. Ry. v. Brown, 160 Miss. 123; Shubert v. State, 66 Miss. 446; Sullivan v. State, 155 Miss. 629; Mabry v. State, 71 Miss. 916; Fletcher v. State, 60 Miss. 675.

Appellant did not exhaust peremptory challenges and therefore cannot complain of the trial jury.

M. C. Ry. v. Aultman, 173 Miss. 622; Conn. Mut. Life v. Hillmon, 188 U.S. 208; Schrader v. State, 84 Miss. 593; Tatum v. Preston & Stetson, 53 Miss. 654.

Corporate taxpayers are disqualified as jurors in actions against their corporation.

Abbot Civil Issues Before a Jury (5 Ed.), 1935, sec. 7; Thompson on Trials. (2 Ed.), 1912, sec. 63; 35 C. J. 315; Hesketh v. Braddock, 3 Bur. 1846; Wheeler v. Cobbs & Mitchell, 253 P. 5; West v. Hedges, 171 P. 766; Multnomah County v. Williamette T. Co., 89 P. 389; Ford v. County, 16 P. 33; Portland v. Kamm, 5 Ore. 362; Garrison v. Portland, 2 Ore. 123; Hawes v. Guestin, 2 Allen 402; Diveny v. Elmira, 51 N.Y. 506; Wood v. Stoddard, 2 Johns 194; Peck v. Essex County, 21 N.J.L. 656; Russell v. Hamilton, 2 Scam. 56; Cason v. Ottumwa, 71 N.W. 192; Dively v. Cedar Falls, 21 Ia. 565; Davenport v. City, 13 Ia. 229; Cramer v. Burlington, 42 Ia. 315; Kendal v. Allvia, 73 Ia. 241; McGinty v. Keokuk, 66 Ia. 725; Broadway, etc., Co. v. Leavenworth, etc., Co., 106 P. 1034; Gibson v. Wyandotte, 20 Kan. 156; Kansas City v. Kirkham, 59 P. 675; Goshen v. England, 21 N.E. 977; Albion v. Hetrick, 90 Ind. 545; Hearns v. Greens-burgh, 51 Ind. 119; Columbus v. Goetehius, 7 Ga. 139; Guthrie v. Sheaffer, 54 P. 699; Fine v. St. Louis, 30 Mo. 166; O'Brien v. Vulcan, etc., Works, 7 Mo. App.; Eberle v. St. Louis, 11 Mo. 247; Oklahoma City v. Meyers, 46 P. 552; Robinson v. Wilmington 32 A. 347; Alexandria v. Brockett, 1 Cranch 505; Watson v. Tripp, 11 R. I. 98.

Common law is in force in Mississippi. Impartial jurors are insisted upon as at common law.

L N. O. T. Ry. v. Mask, 64 Miss. 738; Brown v. State, 57 Miss. 425; Planter's Oil Mill v. Y. & M. V. Ry., 121 So. 138; 12 C. J. 180, sec. 6; Interstate Co. v. Garnette, 122 So. 373; Richardson v. Sims,...

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  • Clark v. Luvel Dairy Products, Inc.
    • United States
    • Mississippi Supreme Court
    • December 16, 1998 the time of the Revolution, but was adopted independently of such statutes, as the law of this state." City of Jackson v. McFadden, 181 Miss. 1, 14, 177 So. 755, 758 (1937). This Court has stated that "The supreme court has the authority to declare for itself what the common law of this ......
  • Anderson, By and Through Doss v. Jackson Municipal Airport Authority, 53194
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    ...of D'Lo, 119 Miss. 28, 80 So. 377 (1918); the operation by the city of a fair, baseball park, or football stadium, City of Jackson v. McFadden, 181 Miss. 1, 177 So. 755 (1937); the operation of a fire hydrant, City of Columbus v. McIlwain, 205 Miss. 473, 38 So.2d 921 (1949); the hauling of ......
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    ...of D'Lo, 119 Miss. 28, 80 So. 377 (1918); the operation by the city of a fair, baseball park, or football stadium, City of Jackson v. McFadden, 181 Miss. 1, 177 So. 755 (1937); the operation of a fire hydrant, City of Columbus v. McIlwain, 205 Miss. 473, 38 So.2d 921 (1949); the hauling of ......
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    ...City of Biloxi, 412 So.2d 230, 232-233 (Miss.1982). The only case cited by either party on this issue is City of Jackson v. McFadden, 181 Miss. 1, 13-17, 177 So. 755, 758-759 (1937). McFadden denied a similar challenge, reasoning that "The interest of a taxpayer of a city is too indirect, r......
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