Wilson v. Wapello Cnty.

• Decision Date: 20 November 1905
• Citation: 105 N.W. 363,129 Iowa 77
• Parties: WILSON v. WAPELLO COUNTY.
• Court: Iowa Supreme Court

129 Iowa 77

105 N.W. 363

WILSON

v.WAPELLO COUNTY.

Supreme Court of Iowa.

Nov. 20, 1905.

Appeal from District Court, Wapello County; F. W. Eichelberger, Judge.

Action at law to recover damages growing out of the death of W. M. Wilson, plaintiff's intestate, and which death was occasioned, as alleged, by the negligence of the defendant county in permitting a county bridge within the county to remain in a defective and dangerous condition. Upon trial there was a verdict and judgment in favor of defendants, and the plaintiff appeals. Affirmed.A. C. Steck and Chester W. Whitmore, for appellant.

Seneca Cornell, W. H. C. Jaques, and W. W. Epps, for appellees.

BISHOP, J.

1. This action was commenced in January, 1903, and was reached for trial upon the issues joined in December, 1904. As the jury was being impaneled, the plaintiff challenged for cause each of the individual jurors called into the box who made answer that he was a property owner and taxpayer in the county. The ground of challenge was that the juror was “incompetent because of showing such a state of mind as would preclude him from rendering a just verdict in said cause.” The several challenges were overruled, and, after exhausting her right of peremptory challenge, the plaintiff was compelled to go to trial before a jury made up of taxpayers of the county. Out of this situation arises the error first complained of. The statute enumerates the several grounds upon which a challenge for cause to an individual juror may be laid. Among these, and it is the only one having any pertinency to the present inquiry, is the following: “When it appears the juror * * * shows such a state of mind as will preclude him from rendering a just verdict.” Code, § 3688, subd. 9. It must be apparent that a challenge based upon such ground calls only for a conclusion upon a fact question, and of necessity such question is addressed to the sound discretion of the trial court. And, as in other cases, where an exercise of discretion is under review, we may not interfere, except an abuse be made to appear. Anson v. Dwight, 18 Iowa, 241;Sprague v. Atlee, 81 Iowa, 1, 46 N. W. 756;Goldthorp v. Goldthorp, 115 Iowa, 430, 88 N. W. 944. Now, it may very well be considered that a personal pecuniary interest in the result of an action is of itself sufficient to justify a finding that a state of mind exists such as to preclude a just verdict. And without doubt every taxpayer within the limits of a municipal corporation is interested in a pecuniary sense in the result of an action brought against such corporation to recover damages as for a personal injury. He must contribute in the way of payment of taxes to liquidate any judgment that may be obtained. It is in line with this thought that we have uniformly held that in actions against a city or town for the recovery of money there was no abuse of discretion in sustaining a challenge for cause to a juror; the challenge being predicated wholly upon the fact that the juror was a taxpayer of the defendant city or town. Of such cases are these: Davenport, etc., Co. v. Davenport, 13 Iowa, 229; Dively v. Cedar Falls, 21 Iowa, 567; Cramer v. Burlington, 42 Iowa, 315;Cason v. Ottumwa, 102 Iowa, 99, 71 N. W. 192.

Some language is used in the opinion in the Cramer Case, and likewise in the Cason Case, upon which an argument might be based, to the effect that it would be reversible error to overrule a challenge made to a taxpayer called as a juror in such a case, but respecting such matter we need not make any pronouncement at this time. It is sufficient to remark in this connection that jurors are drawn from the county at large, and where a city, town, or other minor municipality is proceeded against no substantial injustice could result from a trial to a jury made up of nontaxpaying members of the panel. Moreover, no difficulty need be apprehended in such cases, as challenges on the ground of interest, if sustained, could not have the effect of blocking the machinery of the court, and thus make it impossible that a case be put upon trial. When, however, a county is proceeded against, the court is confronted with quite a different situation. While there is no requirement in the statute that one must be a taxpayer to be eligible as a juror, yet it is fair to presume that each person drawn for jury service is the owner of some property, greater or less in amount or value, which is the subject of taxation. Indeed, we think it within common experience in this state that the appearance of a nontaxpayer juror furnishes a rare exception to the rule. And it is hardly conceivable that a panel should be drawn in any county presenting a sufficient number of nontaxpaying members to make it possible to make up a jury out of such for the trial of a case. It may be true enough that, after exhausting the regular panel, the drawing of talesmen might be resorted to and continued indefinitely until a sufficient number of jurors who could pass challenge should be found. Conceding the possibility of such a course, and to say nothing of the expense incident thereto, we should be very slow to condemn the discretionary action of a trial court in refusing to compel parties to submit their important matters of difference to a jury which might be eventually thus made up. And this conclusion is the more readily reached in view of the statute which gives a plaintiff who has brought an action triable to a jury against a county, in the court of that county, as he must, the unqualified right to have the place of trial changed to an adjoining county. Code, § 3505, subd. 1. In some of the sister states it has been provided by statute that, in an action against a county, it shall be no ground of challenge that a juror called to the box is a taxpayer of the county. And such enactments are undoubtedly based upon the thought that the extent of the personal interest of an individual taxpayer is too slight to be permitted to outweigh, not only the necessity for a speedy disposition of cases thus brought, but the desirability of having every jury made up from the substantial citizenship of the county. In other states it has been held that, in the absence of a mandatory statute, the slight financial interest which flows from the obligation to pay taxes is not sufficient to disqualify a juror, where otherwise there would be a failure of justice. Com. v. Ryan, 5 Mass. 90;Com. v. Brown, 147 Mass. 585, 18 N. E. 587, 1 L. R. A. 620, 9 Am. St. Rep. 736;State v. Intox. Liquors, 54 Me., 564;Middletown v. Ames, 7 Vt. 166; Bassett v. Governor, 11 Ga. 207.

Error in connection with the submission to the jury of special interrogatories propounded by defendant is complained of. The contention made is that such interrogatories were not submitted to counsel for plaintiff before the argument to the jury on behalf of plaintiff began, as required by Code, § 3727. The abstract makes it appear that after counsel for plaintiff had arisen to his feet, and by formal phrase addressed the court and jury, he was interrupted by counsel for the defendant, who then made presentation of the proposed interrogatories. It is shown that the argument was thereupon postponed, and counsel for plaintiff filed a motion in writing to strike the interrogatories because not filed in time; also, subject to the motion, written objections to each of the several interrogatories. The motion to strike was overruled, and the objections were sustained in part and overruled in part; whereupon the argument to the jury proceeded. We think there was no error. The object of the statute is to require that opposite counsel be advised of the requested interrogatories before proceeding to make his argument; and this to the end that he may make objections thereto if he shall be so advised, and, further, that he may...