Kansas City M. & B.R. Co. v. Ferguson

• Decision Date: 18 May 1905
• Citation: 143 Ala. 512,39 So. 348
• Parties: KANSAS CITY, M. & B. R. CO. v. FERGUSON.
• Court: Alabama Supreme Court

39 So. 348

143 Ala. 512

KANSAS CITY, M. & B. R. CO. v. FERGUSON.

Supreme Court of Alabama

May 18, 1905

Appeal from Law and Equity Court, Walker County; Peyton Norvell Judge.

"To be officially reported."

Action by Sarah Ann Ferguson, as administratrix of the estate of John A. Wilson, deceased, against the Kansas City, Memphis &amp Birmingham Railroad Company, to recover for the negligent killing of her intestate. From a judgment in favor of plaintiff for $3,106, defendant appeals. Reversed.

Walker Tillman, Campbell & Morrow, for appellant.

DOWDELL J.

The first question insisted on in argument by counsel for appellant is one that was raised in the court below in selecting the jury for the trial of the case. This question cannot be better stated here than by copying the statement as contained in the bill of exceptions, to wit: "Before the trial of this cause began, the court called jury No. 2 into the box, and ascertained by inquiry of the jurors composing said jury No. 2 that none of them were interested in the defendant or related to the plaintiff or to counsel of either party to the cause. After this was done the defendant demanded a struck jury. The court then ordered the sheriff to serve upon each party a list of 24 jurors in attendance upon the court, and while these lists were being prepared and before such lists had been served upon either party the defendant's counsel then asked the court to ascertain by inquiry of the jurors composing jury No. 1, the only other jury in attendance upon the court, whether any of them were interested in the defendant, or related to the plaintiff, or related to any of the counsel of either party to the cause. The court declined to make such inquiry, and the defendant excepted to the action of the court in declining to inquire of said jurors composing said jury No. 1 as to whether any of them were related to the plaintiff, or to any of the counsel in the cause, and whether any of them were interested in the defendant." Section 2656 of the Code of 1896, which provides for a struck jury, reads as follows: "In all actions triable by jury, either party may demand a struck jury, and must thereupon be furnished by the sheriff with a list of twenty-four jurors in attendance upon the court, from which a jury must be obtained by the parties or their attorneys alternately striking one from the list until twelve are stricken off, the party demanding the jury commencing; and the jury thus obtained must not be challenged for any cause except bias or interest as to the particular case."

No objection was made to the defendant's demand for a struck jury by the plaintiff on the ground that it was not made in time, or for any other reason. The question presented must therefore be considered without reference to the timeliness of the demand. The simple question, then, is, did the court err in its refusal to make the inquiry as requested by the defendant? The inquiry which was requested by the defendant was limited to the ascertainment of whether any member of jury No. 1 was interested in the defendant, or related to the plaintiff, or related to any of the counsel of either party to the cause, and the existence of either one of the facts sought to be ascertained by the request made of the court would constitute ground of challenge of a juror for cause under the statute. The request was made before the list of 24 jurors was furnished by the sheriff to the parties as directed by the court. If the request, when made, imposed a duty upon the court, the refusal of which involved the denial of a right to the defendant, then there was error. There is no statute that in terms requires the court to ask the jury whether any of them are disqualified or are subject to challenge for cause; but such a duty may exist, independent of any express statutory requirement. In Davis v Hunter, 7 Ala. 135, where a struck jury was demanded, it was said: "The defendant complains that the plaintiff was permitted to challenge several jurors for cause previous to commencing the striking. This, we think, was proper enough; for it certainly cannot be supposed that he is obliged to submit his case to a prejudiced jury, because the other party thought proper to demand the privilege of having one struck. The list of jurors from which the striking is to be made must be composed of individuals who are not...