Ulmer v. Pistole

Citation76 So. 522,115 Miss. 485
Decision Date08 October 1917
Docket Number19605
CourtUnited States State Supreme Court of Mississippi
PartiesULMER v. PISTOLE

Division A

APPEAL from the circuit court of Lauderdale county, HON. R. W HEIDELBERG, Judge.

Suit by W. H. Pistole against J. V. Ulmer. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Jacobson & Brooks and Baskin & Wilbourn, for appellant.

C. B Cameron, for appellee.

OPINION

HOLDEN, J.

The appellee recovered a judgment of ten thousand dollars against appellant J. V. Ulmer for the injury and death of his wife, Mrs. W. H. Pistole, who was injured by an automobile operated by appellant in the streets of Meridian. The injury was received in the following manner: Mrs. W. H. Pistole was riding in a single buggy with another lady, who was driving the horse, going east on Ninth street, when they came to the intersection of Twenty-Third avenue, which avenue runs north and south, and they had nearly crossed over Twenty-Third avenue on Ninth street when appellant Ulmer approached in his automobile from the south going north on the right-hand or east side of Twenty-Third avenue, and collided with the buggy, striking the right, rear wheel with great force and violence, throwing the two ladies to the pavement, turning the buggy and horse crosswise in Ninth street, and hurling the buggy cushion against a bystander on the sidewalk. Mrs. Pistole received a gash on the head, and was otherwise injured, from which injuries she finally died.

There was an arc light near, which lighted the scene of the collision. The automobile also had its lamps lighted. There was nothing to prevent appellant Ulmer from seeing the buggy as it approached and crossed Twenty-Third street in his pathway, if he had looked in that direction. The automobile was running at the rate of twenty or twenty-five miles per hour at the time it struck the buggy, and there was no warning given by horn or otherwise. The city ordinance provides that it shall be unlawful for automobiles to exceed a speed of eight miles per hour in the fire limits, and fifteen elsewhere in the city. Twenty-Third avenue and Ninth street at the point of the injury were frequently used by vehicles and pedestrians.

The testimony offered by appellant is in conflict in some particulars with the above facts proven by the appellee, but of course the verdict of the jury settles the dispute as to the facts in favor of appellee. The appellant in his testimony practically confesses negligence on his part. He testified that at the time of the collision he was not looking out for any person or vehicle that might come from the west going east across Twenty-Third avenue, but that he was looking only to his right for vehicles to come out of Ninth street going west. His failure to look in both directions was negligence.

In his appeal here the appellant assigns several errors in the trial below. We will discuss the assignments which appear to merit notice.

First. Appellant contends that the court erred in refusing to sustain the challenge and motion of defendant to quash the entire panel of jurors summoned to serve during the week of court in which this case was set for trial, on the ground that W. R. Pistole, a brother of appellee W. H. Pistole, was the chancery clerk of Lauderdale county, and was clerk of the board of supervisors, and as such assisted in selecting the list of jurors and in drawing the names from the box to serve as jurors at that term of court while this case was pending for trial therein. It is urged that:

"For sound reasons of public policy the appellant should not have been forced to bear any of the possible consequences of the situation, even though no actual fraud was shown to have been committed."

This principle contended for by appellant is well established in the common law, and is based upon the old idea that a person should not be placed in a position where there will arise a conflict between interest and integrity; that the temptation to do wrong should not be afforded by opportunity for fraud. We do not dispute the soundness of this view, and in proper cases the application of this principle should be made, but the case before us does not come fairly within this rule. The record here discloses that the testimony taken on the hearing of the motion demonstrated clearly and conclusively that no fraud was committed in securing the jury under the directory terms of the statute providing the method of obtaining jurors. It appears that the chancery clerk did not as clerk of the board of supervisors select the names placed in the jury box, but this was done by the members of the board of supervisors from their respective districts. In drawing the list of jurors from the box the clerk did not select the names, but drew them in a mechanical way; not having any discretion or knowledge as to what names would be drawn as jurors for the term of court. The undisputed proof in the record shows that the clerk did not in any way select or discriminate in the drawing of the jurors from the box. So it abundantly appears that no fraud was practiced, and that there was little or no opportunity for fraudulent conduct. Section 2716, Code 1906, provides that "a challenge to the array shall not be sustained, except for fraud." Under the particular facts here we cannot say there was fraud or even a well-grounded suspicion of it.

Second. The appellant complains that the court erred in granting certain instructions to the appellee, and refusing certain instructions asked for by appellant. We have carefully reviewed all of the instructions refused and given to both sides, and, taking all of them together, we cannot say that the lower court committed reversible error in announcing the law governing the case.

Third. Appellant contends that the proof is not sufficient to show that the injury received by Mrs. Pistole was the cause of her death. There is no merit in this position, as a number of witnesses, including doctors, testified that the death resulted from the injuries received by her when struck by the automobile driven by appellant. The jury believed this testimony, which ends the dispute of fact.

Fourth. It is urged by appellant that a new trial...

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