Parman v. Kansas City

105 Mo. App. 691 | Mo. Ct. App. | 1904

ELLISON, J.

This action is for damages alleged to have resulted to plaintiff by reason of a fall on one of defendant’s sidewalks alleged to have been negligently maintained. The judgment in the trial court was for plaintiff. It appears from the record that the verdict was found by the concurrence of ten of the jurors and that one of these signed the verdict by what is commonly known as making his mark; that is, his name was signed by one of the other jurors and he made his mark, or cross, thereon. The verdict and judgment is attacked for the reason that the juror not being able to write was not a qualified juror. Our statute (sec. 3799, Revised Statutes 1899) reads; “None of the following persons shall be permitted to serve as jurors: . . ; third, any person who is not sufficiently acquainted with the English language to read and write the same, and to understand thoroughly the proceedings ordinarily had in courts of justice. . . .”

The only evidence we have that the juror complained of could not write, is that he made his signature to the verdict by making his mark, as above stated. We do not regard that as sufficient to establish his disqualification. It does not follow but that he may have been a scholar and in every way qualified, but with a disabled hand, he adopted the method stated as the best means he had of giving his consent to the verdict. We are satisfied that the mere signing by mark, was not, alone, sufficient to overcome the presumption of qualification which arose when he was accepted on the panel by the court and the parties as competent. This view maizes it unnecessary to discuss the point as to Avhen defendant should have made known its objection.

The remaining objection to the judgment is error claimed in an instruction for plaintiff, by reason of its generality. The instruction in general terms informed the jury that there might be allowed damages in such sum as would justly and fairly compensate her for the injury she received, if any, and for the pain and suffering occasioned thereby. The instruction was general, but was correct as far as it went; and if desired to be more specific, defendant should have framed one with that end in view, which would have made it as perfect as it is now claimed it should have been. Browning v. Railroad, 124 Mo. 55; Barth v. Railroad, 142 Mo. 535; Matthews v. Railroad, 142 Mo. 645; Robertson v. Railroad, 152 Mo. 382; Harmon v. Donohoe, 153 Mo. 263; Railroad v. Shoemaker, 160 Mo. 425; Wheeler v. Bowles, 163 Mo. 398, 409; Haymaker v. Adams, 61 Mo. App. 581, 585. In the two last eases will be found a statement of cases formerly holding a different view which have been overruled by those here cited.

It follows from the foregoing that the judgment should be affirmed.

All concur.