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ANNOTATION.

Exemption from taxation of property which religious or charitable body has

no right to hold.

An exemption from taxation of the under this general statute, must come property of a religious or charitable as an owner who has a title which body does not extend to property the state is bound to recognize. A which that body is not entitled to hold corporation which, as against the under its charter or under the statutes state, has no right to hold such proprelating to such institutions. Evangel- erty, is not in a position to claim a ical Baptist Benev. & Missionary Soc. statutory exemption which is intended v. Boston (1909) 204 Mass. 28, 94 N. E. only for a holding fully authorized by 572; Central Methodist Church v. Me- law." ridian (1921) 126 Miss. 780, 89 So. 650. Central Methodist Church v. MeridSee also Children's Seashore House ian (1921) 126 Miss. 780, 89 So, 650, v. Atlantic City (1902) 68 N. J. L. 385, supra, involved a statute (Miss. Code 59 L.R.A. 947, 53 Atl. 399, affirming 1906, § 934) providing that "any re(1900) 65 N. J. L. 488, 48 Atl. 242. ligious society or congregation or ecAnd see the reported case (GUNTER v. clesiastical body may hold and own at JACKSON, ante, 1043).

any one place, the following real propIn Evangelical Baptist Benev. & Mis- erty, but no other, viz.,"_specifically sionary Soc. v. Boston (Mass.) supra, enumerating the edifices permitted to it appeared that the plaintiff, a reli- be owned. The court held that propgious corporation, was, by the special erty not used for any of the enumeract under which it was incorporated, ated purposes, but, on the contrary, authorized to hold property to the held for sale, was subject to taxation. amount of $350,000, and this property That decision is followed in the rewas by that act exempted from ported case (GUNTER V. JACKSON). taxation. The corporation, having Children's Seashore House v. Atlanacquired property in excess of the tic City (1902) 68 N. J. L. 385, 59 sum named, sought to have the excess L.R.A. 947, 53 Atl. 399, affirming declared to be exempt under (1900) 65 N. •J. L. 488, 48 Atl. general statute exempting "houses of 242, bears only collaterally on the religious worship owned by question under discussion. In that held in trust for the

of case it appeared that a charitable any religious organization.” The corporation was chartered under a court, after recognizing that

that the special act limiting the amount of corporation's ownership of the excess property it was

entitled to hold. was invalid only as against the state, Thereafter it acquired property in exsaid: “The question at once arises cess of that amount. A later act, whether, under a system that pro- relative to charitable corporations, vides for the taxation of all property, generally increased the property limit unless an exemption is created by stat

so as to cover the amount so held, but ute and is plainly established, the

provided that "nothing herein congeneral law invoked by this petitioner

tained shall be construed to exempt can be held applicable to create an ex

the property of said corporation from emption in favor of a party whose

taxation.” It was held that the clause holding is ultra vires, and in excess

quoted did not prevent an exemption of the authority given by its charter. This exemption is claimed against an

under a general statute exempting all

buildings used exclusively for charitaassessment for city, county, and state taxes. The claim is made against the ble purposes, the court saying: "The public authorities representing the Act of 1890 does not say that such state. We are of opinion that a party, corporations whose capacity to hold asking an exemption of his property property is thereby increased shall not

а

or

use

enjoy the immunity from taxation they act." Exemption was, however, denied may be entitled to under the general on the ground that the property in tax law, but only that they shall not question was not used exclusively for claim such immunity, by virtue of that charitable purposes.

R. L. T.

JOHN M. RHOADES, Piff. in Err.,

V.
EL PASO & SOUTHWESTERN RAILWAY COMPANY et al.

Texas Commission of Appeals (Section A) - March 14, 1923.

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(Tex. 248 S. W. 1064.) Jury — qualifications — prejudice against contingent fee.

1. A juror who does not believe that an attorney who takes a case for a contingent fee should receive anything is so prejudiced as not to be qualified to sit in a case in which an attorney is employed on that basis.

[See note on this question beginning on page 1052.] New trial - effect of bias of juror. power of supreme court to grant.

2. When a juror on his voir dire de- 3. The supreme court may set aside nies bias or prejudice, and is accepted a verdict and the judgment entered on such statement, the party against thereon, if the evidence taken on the whom bias or prejudice in fact exist

hearing of a motion for new trial beed can complain of the same as ground for setting aside the verdict,

cause of improper communications to

the jury leaves it reasonably doubtalthough such bias or prejudice is not shown to have caused an unjust ver

ful whether statements of fact imdict.

properly made before the jury affected [See 20 R. C. L. 242; 4 R. C. L. Supp. the verdict. 1347.]

а

ERROR to the Court of Civil Appeals for the Seventh Supreme Judicial District to review a judgment affirming a judgment of the District Court for Oldham County (Tatum, J.) in favor of defendants in an action brought to recover damages for personal injuries for which they were alleged to be responsible. Reversed.

The facts are stated in the opinion of the court.

Messrs. K. K. Scott and R. R. Ha- on special issues. Upon the anzelwood for plaintiff in error.

swers returned by the jury to the Messrs. W. A. Hawkins, C. E. Gus- issues so submitted, the court rentavus, and N. H. Lasseter for defend

dered judgment for the defendants. ants in error.

The plaintiff appealed. The court Gallagher, P.J., filed the following of civil appeals affirmed the judgopinion:

ment. The supreme court granted Plaintiff in

error,

John M. a writ of error on application of the Rhoades, brought this suit against plaintiff. the El Paso & Southwestern Rail- Plaintiff filed in the trial court a way Company and the Chicago, motion to set aside the verdict of Rock Island, & Gulf Railway Com- the jury and the judgment rendered pany, to recover damages for per- thereon by the court and for a new sonal injuries. The parties will be trial, on the ground that the jury, designated as in the trial court.

certain members thereof, were The case was tried before a jury biased and prejudiced against him,

(-Tex.

~, 248 8. W. 1066.) and that he was thereby deprived file suit in the courts; that if they of a fair and impartial trial of his allowed plaintiff anything in this case. The court overruled said mo- case the lawyers would get half of tion, and such action was assigned it, and that he did not want them to as error by the plaintiff in the court have anything; that he wanted to of civil appeals. That court over- stop that sort of business." ruled said assignment, and its ac- Said affidavit showed that said tion in doing so is presented by Staggs, during the discussion in the proper specification of error in jury room, also stated to other juplaintiff's application for the writ. rors “that this case was worked up

Plaintiff's bill of exceptions by the lawyers in the case.” shows that at the time the jury was Said affidavit further showed that impaneled, each juror on the panel during the discussion in the jury was asked by plaintiff's counsel if room Mr. Aten, one of the jurors, there was in his mind or heart any stated to other jurors "that one of reason why, if chosen as a juror, he the attorneys in this case brought could not and would not give the a suit in the Federal court at Amaplaintiff a fair and impartial trial, rillo against a citizen of Adrian, and that each juror on the panel where said juror lived, and recovanswered that there was not; that ered $10,500, and that the lawyer each juror on the panel was asked got most or all of the judgment.” if, in event he was chosen as a juror Eleven members of the jury who in the case, he would give the plain tried the case testified on the heartiff such fair and impartial trial ing of said motion. The substance after hearing the evidence, receiv- of the affidavit was supported by ing the charge of the court, and the testimony of the signers therehearing the argument of counsel, to, and one or more other members and that each juror on the panel an- of the jury. At least one of the swered in the affirmative; that the jurors stated that he was influenced plaintiff relied on said answers in by said statements and did not selecting from the panel the jurors reach a verdict solely on the testiwho tried the case, and did not be- mony in the case, and that this aplieve that any of them had any bias plied to the answers to several of or prejudice against him or his case. the issues submitted. The juror

One of the special issues submit- Staggs testified on the hearing, and ted was, “What amount has plaintiff admitted part of the statements atbeen damaged ?” To this question tributed to him. He did not deny the jury answered, “$1,000.” Plain any of said statements, except that tiff attached to his motion an affi- he claimed he did not specify any davit, signed and sworn to by two particular lawyer, or say that such of the jurors, which affidavit stated things were done in this case. He in substance that the deliberation denied having any personal ill will and discussion in the jury room against the plaintiff, but did not delasted six or eight hours; that a dif- ny that he was opposed to parties ference of opinion existed as to the prosecuting damage suits on conanswer which should be returned to tingent fees, and desired to stop the said special issue, some of the ju- practice, or that he was actuated rors insisting on as high as “$10,by such purpose in saying what he 000" as an answer thereto; that dur- did in the jury room in the considing the discussion Mr. Staggs, one of eration of this case. the jurors, stated to other jurors The juror Aten was examined as "that lawyers had a way, when they a witness on said hearing, and adheard of an injury, to go and take mitted that other suits were disthe case on a contingent fee for one cussed in the jury room. He did half of what was recovered, and not admit the language attributed would not settle with the claim to him, neither did he deny the agent of the company, but would same, but claimed a lapse of mem

bias

§ 15.

ory. He also testified that he had bias or prejudice in favor of or no ill will toward either the plaintiff against either of the parties to the or his attorney.

suit. In such cases it is not necesThe court of civil appeals refused sary that the disqualifying bias or to pass upon the issue raised by said prejudice shall relate solely to the assignment. While holding that party personally, but it may also rethe evidence above set out tended late to such party's case as presentstrongly to show that the jurors ed for trial before the jury. Couts Staggs and Aten were prejudiced v. Neer, 70 Tex. 468, 473, 9 S. W. against plaintiff's case, there being 40. no statement of facts brought up in If a juror, when tested on his the record, that court further held voir dire concerning his qualificathat they were unable to say that tions to sit on the jury in a particplaintiff suffered any injury as a ular case, denies the existence of result of such prejudice.

any bias or prejudice in his mind in The Bill of Rights embraced in favor of or against either party to our state Constitution declares that the suit, and is accepted as a juror the right of trial by jury shall re- on such statement, according to the main inviolate, and it further pro- great weight of authority, when vides that the legislature shall pass such bias or prejusuch laws as may be needed to reg- dice does exist, the New trial-effect ulate the same and maintain its party against whom purity and efficiency. Const. art. 1, the same exists can complain of the

same as a ground for setting aside The legislature of this state, the verdict. He is not required to the performance of the duty so en- show that such bias or prejudice joined upon it, has enacted certain caused or contributed to cause the laws concerning the qualifications return of an unjust verdict in his of jurors with reference to their case. It is sufficient that he, withservice as such in any case, and out his fault, has been deprived of with reference to their service in the constitutional and statutory particular cases, and prescribing guaranty of a trial of his case bethe procedure when a jury has been fore a fair and impartial jury. It is guilty of improper conduct while immaterial in such cases whether a serving as such, which, in the opin- regular statement of facts is found ion of the court, materially affected in the record or not. Henrie v. their verdict. Rev. Stat, arts. 5115, State, 41 Tex. 573, 579, 580; Couts 5117, 2021.

v. Neer, supra; Makey v. Dryden, Our courts have held that the - Tex. Civ. App. - 128 S. W. 633, mere fact that a juror who served 635, 636 (writ refused); Kansas in a case and joined in returning a City L. Ins. Co. v. Elmore, — Tex. verdict therein did not possess all Civ. App. - 226 S. W. 709, 714,

. the qualifications prescribed for 715; Gulf, C. & S. F. R. Co. v. Dickjurors generally by article 5115 will ens, 54 Tex. Civ. App. 637, 118 S. W. not be considered sufficient cause 612, 614, 615; Texas & P. R. Co. v. for new trial, in the absence of a Elliott, 22 Tex. Civ. App. 31, 54 S. showing that probable injury re- W.410; Hanks v. State, 21 Tex. 526; sulted to the party complaining, by Long v. State, 32 Tex. Crim. Rep. reason of the fact, that such juror 140, 22 S. W. 409; Hughes v. State, served in the case. Schuster v. La Tex. Crim. Rep. —, 60 S. W. 562, Londe, 57 Tex. 28, 30; Leeper v. 563, 566; Heasley v. Nichols, 38 State, 29 Tex. App. 63, 14 S. W. Wash. 485, 80 Pac. 769; Gibney v. 398, 399.

St. Louis Transit Co. 204 Mo. 704, Among the reasons which dis- 103 S. W. 43; West Chicago Street qualify a juror in a particular case R. Co. v. Huhnke, 82 Ill. App. 404; under the provisions of article 5117 French v. Smith, 4 Vt. 363, 24 Am. is the fact that such juror has a Dec. 616, 619; Birmingham R.

-power of supreme court

Tex. -, 248 S. W. 1064.) Light & P. Co. v. Drennen, 175 Ala. of the plaintiff has not had a trial 338, 57 So. 876, Ann. Cas. 1914C, of his cause before a fair and im1037.

partial jury, as guaranteed by the The statute concerning improper Constitution and laws of this state. conduct on the part of a jury pro

The evidence also shows without vides that, if it is charged in a mo- dispute that the improper statetion for new trial that improper ments made by said jurors in the communications were made to such jury room influenced at least one jury, or that they received other other juror in agreeing to the antestimony, the court shall hear evi- swers returned by the jury to one dence thereon, and if such charge is or more of the issues submitted. established and the communication Since one or more of the jurors tryso made or the testimony so re

ing this case had such bias or prejuceived was material, a new trial dice as to disqualify, it is immatemay, in the discretion of the court, rial that such bias or prejudice was be granted. Article 2021, supra manifested in the discussion of the Such discretion is, however, subject amount of damages to be allowed. to review if it clearly appears that It is true the amount of damages althe rights of the parties have been lowed plaintiff was wholly immatedisregarded. If the evidence taken rial, because he was precluded from

on the hearing of a a recovery by reason of the findings motion for

new of the jury on other issues submitto grant.

trial, based on such ted. But the fact remains that bias ground, leaves it reasonably doubt- or prejudice existed, and it did not ful whether statements of fact im- devolve on plaintiff to show affirmaproperly made before the jury af- tively that he suffered injury as a fected the verdict, the supreme

result thereof. Our recommendacourt has authority to set such ver- tion in this case is predicated on dict and the judgment rendered the existence of such disqualificathereon aside. Houston & T. C. R. tion. This being the case, it is not Co. v. Gray, 105 Tex. 42, 43, 143 S. necessary to decide whether the W. 606; Hines v. Parry, — Tex. ,

misconduct of the jury in this par238 S. W. 886.

ticular case can be reviewed in the There is no contention that any ·

absence of a statement of facts, or of the jurors in this case were not

whether the trial court abused his qualified generally to sit upon a

discretion in refusing a new trial on

that ground. jury. The record shows affirma

We recommend that the judgtively that they were examined on

ments of the District Court and their voir dire before they were

Court of Civil Appeals be reversed, accepted as jurors in this case, and

and the cause be remanded to the that each of them denied the exist

District Court for another trial. ence of any bias or prejudice, and that plaintiff relied on such denial. Cureton, Ch. J., delivered the opinThe evidence shows, we think, with- ion of the court: out dispute, that the juror Staggs,

The judgment recommended in and possibly the juror Aten, had the report of the Commission of such bias or prejudice against the Appeals is adopted, and will be en

plaintiff, or against tered as the judgment of the SuJury-qualinications-preju

his cause, as to dis- preme Court. dice against qualify him or them We approve the holding of the contingent fee.

to sit as jurors in Commission of Appeals on the questhis case, and that on account there- tion discussed in its opinion.

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