
    MARY PARMAN, Respondent, v. KANSAS CITY, Appellant.
    Kansas City Court of Appeals,
    February 15, 1904.
    1. JURORS: Statute: Signing Verdict: Reading and Writing. The mere signing a verdict by his mark is not alone sufficient to overcome the presumed qualification of a juror on the ground that he can not read and write the English language as required by the statute.
    2. DAMAGES: Instruction: Defendant’s Duty. An instruction in general terms that the damages should fairly compensate for injuries received is held sufficient since it was correct as far as it went and it was with defendant to make it more specific ' if desired.
    Appeal from Jackson Circuit Court. — -Hew. Edw. P« Gates, Judge.
    Appikmed,
    
      R. J. Ingraham, city counselor and L. E. Durham for appellant.
    (1) Plaintiff’s instruction on measure of damages is too vague and should not have been given. Hawes v. Stock Yds. Co., 103 Mo. 60; Camp v. Railroad, 94 Mo. App. 272; Badgley v. St. Louis, 149 Mo. 134; Stephen v. Railroad, 96 Mo. 207. (2) One of the jury was unable to write his name and hence there was not a competent jury in the cause. The court erred in not granting a new trial for this reason. R. S. 1899, sec. L 3799; State v. Welsor, 111 Mo. 571; Johnson v. State, 21 Tex. App. 378; Rainey v. State, 20 Tex. App. 473; Mabry v. State, 71 Miss. 716. (3) Defendant had the right to presume that all the jurors possessed statutory qualifications, and if after trial it develops a juror could not write, defendant is entitled to a new trial. Road Co. v. Railroad, 13 Ind. 90; Mann v. Fairlee, 44 Vt. 672; Biggs v. Georgia, 15 Vt. 72; State v. Groome, 10 Iowa 316; Lane v. Scoville, 16 Kan. 405.
    
      Charles W. Clarke, A. 8. Lyman and C. A. MiUer for respondent.
    (1) Even though the court may think the instructions on the measure of damages are not as clear as they should have been; yet considering the evidence and the amount of the judgment, the court must conclude that the error, if there was error, was harmless and is not ground for granting a new trial. R. S. 1899, sec. 865; Haniford case, 103 Mo. 174. (2) The second assignment of error is because one of the ten jurors who signed the verdict signed by his mark; for this reason alone, this court is asked to grant a new trial. This ¡contention is directly in conflict with sec. 3763, Revised Statutes 1899, and the express decision of this court in Pitt v. Bishop, 53 Mo. App. 603; Ledlie v. Gamble, 35 Mo. App. 356; Boteler v. Roy, 40 Mo. App. 238.
   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.  