City of Jackson v. Pool

• Court: Tennessee Supreme Court
• Writing for the Court: LEA, J.
• Citation: City of Jackson v. Pool, 91 Tenn. 448, 19 S.W. 324 (Tenn. 1892)
• Decision Date: 28 April 1892
• Parties: Mayor, Etc., of City of Jackson v. Pool et ux.

19 S.W. 324

91 Tenn. 448

Mayor, Etc., of City of Jackson v. Pool et ux.

Supreme Court of Tennessee.

April 28, 1892

Appeal from circuit court, Madison county; L. S. Wood, Judge.

Action by E. C. Pool and wife against the mayor and aldermen of the city of Jackson for personal injuries. Judgment for plaintiffs. Defendant appeals. Reversed.

LEA, J.

This is an action for damages against the city, brought by defendants in error for injuries to Mrs. Pool by having her arm broken being thrown down by a defective plank walk. There was a verdict for plaintiffs below, and defendant appealed. A number of errors are assigned. First, upon motion of plaintiffs, without cause shown, the sheriff was ordered by the court to summon as jurors citizens from the county, and not to summon taxpayers or residents of the city of Jackson and that A. P. Moore, one of the jurors summoned, was ordered by the court to stand aside because he was a citizen of Jackson, though not a taxpayer, and these orders of the court were over the objection of the defendant. The question is presented whether a taxpayer or resident of a municipal corporation is a competent juror in a suit by or against the corporation, having no individual interest in the subject of the suit. The object of the law is to secure a fair and impartial trial, and to this end to secure fair and unbiased jurors. It is said in argument that there has been no direct adjudication of this exact question in this state. While this may be true, the same has been indirectly decided, and has never been questioned, so far as we are aware, since the decision of this court in Mayor, etc., v. McKee, 2 Yerg. 168, where it was held that magistrates who were residents of a municipal corporation are not incompetent to issue warrants and try causes in which the corporation is interested, if they have no individual interest in the subject of the suit. If not incompetent to try suits for or against the corporation, then certainly they would not be incompetent jurors to try the same. When the case in 2 Yerg 168 was decided, our statutes made every one having any interest in a suit incompetent to testify therein, yet in that case it was decided that, in all questions respecting the rights and immunities of a municipal corporation individuals, though members of a corporation, were not incompetent witnesses. In Ezell v. Justices of Giles Co., 3 Head, 586, it was held that, in a suit against the county, a justice was a competent witness in the suit, his interest being too remote and contingent, as well as too minute, to disqualify him. The suit is against the corporation, and not against the citizens of the corporation, and, in the absence of some individual interest, we hold that the fact that a person is a resident or taxpayer of a municipal corporation does not render him incompetent as a juror in a suit by or against the corporation. If they are incompetent as jurors, so would a recorder of a town or city be incompetent to try a corporation case, and so would a judge be incompetent to hear and determine a case in which the city of his residence was a party.

But it is insisted that by section 4805, Code, it is provided that a special jury may be ordered, upon motion of either party, in any civil action, if in the opinion of the court it is proper, and that it has been held that the judge may designate the persons to be summoned, and his discretion in ordering a special jury will not be revised. Clingan v Railroad Co., 2 Lea, 726, 727. If the judge had ordered a special jury, as authorized by statute, or had designated who should be summoned, then his discretion would not probably be revised, nothing else appearing. But he did not order the sheriff to summon a special jury of certain qualifications, nor did he designate the jurors who shall be summoned, but he ordered the sheriff to summon citizens from the county, and not to summon citizens of Jackson. The law in its provision for a special jury contemplates the selection of men with reference to their superior competency and fitness to try and determine the particular issues involved in the case, but the judge cannot direct the sheriff, where all are equally competent, not to summon those whose residence is within the city limits, but to summon only those who reside beyond...