Mcarthur v. Kansas City Elevated Railway Company
| Decision Date | 04 February 1907 |
| Parties | JOHN McARTHUR, Respondent, v. KANSAS CITY ELEVATED RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas, Ben T. Hardin and Ben F. White for appellant.
(1) The court erred in swearing the panel of eighteen men as to their qualifications as jurors when no attorney or other person connected with the defendant and its defense was present. (2) The court erred in overruling the defendant's motion for a change of venue. R. S. 1899, sec. 818. (3) The court erred in permitting C. E. Burnham, one of the attorneys for the plaintiff, in his argument of the case to the jury, to argue against the instructions of the court. 96 Mo. 104; 95 Mo 268; 97 Mo.App. 566; 96 Mo.App. 218; McQuillin on Instructions, sec. 22; Thompson on Trials, sec. 944; Dean v. Chandler, 44 Mo.App. 338, l. c. 344.
Burnham & Brewster for respondent.
(1) It was the duty of the defendant to have its counsel in court when this case was called for trial and the court was not obliged to wait until counsel for defendant appeared, before putting a jury in the box. (2) The motion for a change of venue filed by the Metropolitan Street Railway Company should have been overruled because the same was not filed until after the jury had been sworn to answer questions and the trial had actually begun. State v. Lehman, 182 Mo 424; State v. Burns, 54 Mo. 281; State v. Candle, 174 Mo. 388; State v. Blitz, 171 Mo. 530; Fugate v. Young, 6 Mo. 269. (3) The motion for change of venue was filed by the Metropolitan Street Railway Company, and appellant, the Kansas City Elevated Railway Company, was not a party to said motion and did not ask for a change of venue, either before or after the plaintiff had dismissed as to the Metropolitan Street Railway Company, and even though the Metropolitan Street Railway Company might have been entitled to a change of venue, appellant having no interest therein, has no right to complain. (4) The argument of C. E. Burnham, wherein he said: "I desire to say to you gentlemen of the jury that this instruction given by the court does not apply to the facts in evidence in this case," was a proper argument and in making it plaintiff's counsel was wholly within the limits of legitimate argument.
This is an action for personal injury, in which the plaintiff prevailed in the trial court.
It appears that the case was instituted against both this defendant and the Metropolitan Street Railway Company. When it was called for trial neither of the defendants was present by agent or attorney. The plaintiff answering ready for trial, the court proceeded with impanelling a jury. The panel was sworn to answer questions touching their qualifications to act as jurors and word was sent to counsel for the defendants that the case had been reached. It seems that some one from the office of the attorneys representing defendants requested the court to postpone the case for the reason that all of defendants' attorneys were then engaged in the trial of cases in other divisions of the Jackson Circuit Court and that it was impossible for them to leave such trials. The trial court refused the request, whereupon the defendant applied for a change of venue in due form on account of prejudice and bias of the judge.
The application for change of venue being made after the jury was sworn, was out of time. Besides, it seems that afterwards the case was dismissed as to the defendant making the application and was left standing against this defendant alone, which latter defendant made no complaint against the judge. No harm could possibly have resulted to the applicant.
Exception was taken to the action of the court in proceeding to empanel a jury in absence of counsel. Exception was also taken to action of the court "in forcing the defendant to trial." The following then appears in the bill of exceptions:
"The Court: You may let the record show that on June 15, 1905 this case was called for trial and the announcement was made that Mr. Hardin, one of the attorneys for the defendant, would represent the defendant in this case and that he was engaged in Division No. 2; that on Friday, the 16th day of June, the case, still waiting for Mr. Hardin, was reset specially for Tuesday, June 20, 1905; that case was reached in the regular course on Wednesday, June 21, 1905, and called for trial about 10:45 a. m.; that there was no one here at that time to represent the defendants; that the jury was in the box and word was sent to counsel for the defendants saying that the case was reached, and Mr. Mathis, one of the assistants in the legal department of the Metropolitan Street Railway Company, came into this courtroom about 10:50 a. m. and he was told to notify Mr....
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