St. Louis & S. F. R. Co. v. Hooser

• Court: Texas Court of Appeals
• Writing for the Court: Rainey
• Citation: St. Louis & S. F. R. Co. v. Hooser, 97 S.W. 708, 44 Tex. Civ. App. 229 (Tex. App. 1906)
• Decision Date: 17 November 1906
• Parties: ST. LOUIS & S. F. R. CO. v. HOOSER.

97 S.W. 708

ST. LOUIS & S. F. R. CO. v. HOOSER.

Court of Civil Appeals of Texas.

November 17, 1906.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by W. C. Hooser against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

C. H. Yoakum and Head, Dillard & Head, for appellant. Randell & Wood, for appellee

RAINEY, C. J.

This suit was brought by appellee, of the Indian Territory, to recover of appellant, the sum of $1,500, the value of certain cotton alleged to have been burned at Troy, Ind. T., by sparks emitted from defendant's engine. A trial resulted in a verdict for plaintiff and the defendant appeals.

The first assignment is: "The court erred in not sustaining the challenge for cause of defendant to the Juror, Carter, and in forcing defendant to use a peremptory challenge to strike said Carter from the panel." The cause for challenge shown by defendant's bill of exceptions is as follows: "Be it remembered that on the trial of this cause, after counsel on both sides had announced ready for trial, that there were 25 jurors in the box from which they should select the jury, and that a list with 25 names on it was presented to each counsel. Among others in the panel was Charles Carter, whose name stood twelfth on said list. On his voir dire said Carter was asked if he had had any trouble with the railways. He stated that he had. He was then asked if he had any prejudice or feeling against them. He stated that he had. He was then asked by defendant's counsel if such feeling or prejudice would influence him in his verdict in this case. He said that he could not say that it would not. He was then asked by counsel for plaintiff if, notwithstanding such feeling, he believed he could give to the railway company in this case a fair and impartial trial. He stated that he believed he could, but he would rather not sit on the case, He was then further asked by plaintiff's counsel if such feeling would influence him, and he said that he could not say it would, but he believed he could give the railway company a fair trial. He was then asked by counsel for defendant if he would say that such feeling would not influence him in the trial of this case, and he answered: `I would rather not sit in the case. It might influence me some.' The juror was thereupon challenged by defendant for cause, but the challenge was overruled by the court, and the said Carter was left on the panel. On said panel there were seven names which were objectionable to defendant, and all of which names defendant would have struck, if it had been allowed so many challenges, and one of the names was said Carter. The twenty-fifth name on the list was not objectionable to defendant, and, if the court had sustained the challenge of defendant, said name would have been reached. Defendant struck these names from its list, and among others the name of said Carter, but there was still left on the jury one juror who was objectionable to defendant and whom defendant would have stricken off, but that it exhausted its entire six challenges and had to use one in striking said Carter from said list. This bill is allowed with the following qualifications: That the Juror Carter also stated in substance that the trouble he had had with the railroads was with the Houston & Texas Central Railroad Company, and in response to questions by plaintiff's attorney the juror stated that he had never had any trouble with the defendant railway, that he could give said railway a fair and impartial trial; but he would rather not sit on the jury."

The law contemplates that parties to litigation can try their case before a jury that is impartial and free from bias in favor of or prejudice against either party. The bill of exceptions, we think, shows that the juror was prejudiced against railways to the extent that he was fearful he could not help being...