"This suit was instituted by the appellee, Betty Bryan, against the appellant, Northern Texas Traction Company, to recover damages for injuries alleged by her to have been received on the 26th of December, 1923, at the corner of Sixth and Main streets in the city of Fort Worth. She was crossing, or attempting to cross, Main street on the occasion in question, when she was struck by one of the street cars of the appellant, Northern Texas Traction Company. She alleges the operator of the street car was guilty of negligence in several respects proximately causing her injuries. The defendant pleaded a general denial and contributory negligence. A trial was had before a jury in the Ninety-Sixth district court, which resulted in a verdict and judgment of the court below in favor of Betty Bryan and against the Northern Texas Traction Company for $20,500, from which judgment this appeal has been prosecuted.
"The case was reached for trial on the 22d of September, 1925, in the Ninety-Sixth district court of Tarrant county, Tex. (the suit having been regularly set for trial for that date in the court referred to), and before announcement of ready the appellant, Northern Texas Traction Company, presented a motion to the court asking that the jury panel drawn for the week of September 21st be quashed. The motion, in substance, alleged that Tarrant county came under the provisions of the jury wheel law found in articles 2094 and 2095 of the Revised Civil Statutes of Texas, and that the officers designated by the so-called jury wheel law met between the 1st and 15th of August, 1925, for the purpose of filling the jury wheel from which juries to try cases in the district and county courts of Tarrant county for the ensuing year would be selected, and that, instead of filling the wheel from the tax lists in the tax assessor's office for the current year, as provided in article 2094, the officers referred to filled the wheel from a list of all taxpayers secured from the tax collector of Tarrant county (such lists containing the names of all those who had paid taxes of every description, including poll taxes, for the year 1924), and that the present jury panel consisted of a jury drawn from the jury wheel filled in this manner. It was also alleged that the jury wheel, having been filled in the manner hereinbefore set out, contained several thousand more names than those shown on the tax lists in the tax assessor's office for the current year of 1925.
"The jury panel for the week beginning Monday, September 21, 1925, was drawn from the jury wheel after it was filled between the 1st and 15th of August, 1925, and some two or three weeks before the 21st of September of the same year. The jurors so drawn were notified to appear in the Forty-Eighth district court of Tarrant county, Tex., presided over by Judge Bruce Young, on Monday morning September 21st, for service in all the courts of Tarrant county for the week beginning on September 21st. The jurors so summoned for the week of September 21st were impaneled and sworn in by Judge Young on the morning of September 21st for service in all the courts in Tarrant county for that week. At the time the general panel were sworn in by Judge Young on the morning of September 21st no motion was made at that time to disqualify the panel because of the reasons urged in the motion presented to the Ninety-Sixth district court on the morning of September 22d. Upon presentation of the motion testimony was adduced, and it appears from the testimony that the officers designated by the statute met between the 1st and 15th of August, 1925, and filled the jury wheel for the ensuing year. The wheel was first emptied and then refilled with cards containing the names of all taxpaying citizens of Tarrant county for the year 1924—understood by such officers to be qualified jurors. These names were taken from a list furnished by the tax collector. This list included the names of all the citizens of Tarrant county over 21 years of age who had paid taxes to the tax collector of Tarrant county for the year 1924, including those who had merely paid a poll tax without having rendered their taxes in the tax assessor's office. The wheel so filled from which the panel in this case was drawn contained approximately 4,000 or 5,000 more names than were contained on the tax lists in the tax assessor's office for the current year of 1925. The action of the officers filling the wheel from the tax collector's lists rather than from the lists in the tax assessor's office was deliberate. These officers, previous to filling the wheel, had investigated the situation, and had received opinions pro and con as to the proper lists from which to take the names, including an opinion from the Attorney General to the effect that the tax lists in the tax assessor's office were the proper lists from which to get the names.
"Between the first of January and the last of April, 1925, various citizens of Tarrant county rendered their taxes in the tax assessor's office. Each rendition was made on a separate piece of paper furnished for that purpose, and placed in a bound volume in alphabetical order. On the last of April, 1925, these inventories were completed, and constituted in book form an alphabetical list of all the citizens in Tarrant county who rendered their taxes for the year 1925. The rendition was closed on the last of April, and no further names were added to the alphabetical inventories for the year. From this alphabetical list or inventory the assessor's rolls were made up. These rolls contained the names of all those who had rendered their taxes for the year 1925, together with the property rendered on and the rendered value, and likewise such notations with respect to the value as the tax assessor might deem pertinent, and were made for the use of the tax collector and Commissioner's court. The rolls for the year 1925 were not completed until about September 21, 1925, and had not passed out of the possession of the tax assessor, nor had they been approved by the Commissioner's court on the date the hearing on the appellant's motion to quash the jury panel was had.
"The designated officers filling the jury wheel for the year 1925 did not intentionally leave out of the wheel the names of any qualified jurors, nor did they intentionally place in the wheel the names of any unqualified jurors, unless those names appearing on the tax collector's lists and not upon the tax lists in the assessor's office for the current year of 1925 were not qualified as jurors in Tarrant county.
"There were 98 jurors impaneled in the Forty-Eighth district court on the morning of September 21st for that week. The names of fourteen of these did not appear upon the tax lists in the tax assessor's office for the current year 1925. The motion of appellant to quash the jury panel was overruled, and thereupon the jury lists in this case were made up and delivered to counsel for the plaintiff and defendant. Thereupon the appellant presented a motion to quash the jury lists in the case and discharge the prospective jurors whose names appeared thereon for the same reasons as urged in the motion to discharge the jury panel, and re-introduced the same testimony in support of its motion. Likewise it appeared that several prospective jurors whose names appeared on the jury list in the case were not citizens whose names appeared on the tax lists in the tax assessor's office for the current year 1925. This motion was overruled by the court, to which an exception was reserved.
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