Thiel

On December 30, 1940, appellant, Gilbert E. Thiel, a citizen of California, brought an action against appellee, Southern Pacific Company, a Kentucky corporation, for damages in the sum of $250,000 for personal injuries sustained by appellant and alleged to have been caused by appellee’s negligence. The action was brought in a State court of California, but, on petition of appellee, was removed from that court to the District Cou’rt of the United States for the Northern District of California. There appellee answered on February 24, 1941. The answer denied that appellant’s injuries were caused by appellee’s negligence. and, as a separate defense, alleged that they were caused and contributed to by appellant’s negligence.

On March 5, 1941, 74 interrogatories were served by appellant on appellee pursuant to Rule 33 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The interrogatories were answered on behalf of appellee by officers or employees of appellee, as follows: Interrogatories 1-21 were answered by Otto Sorenson; interrogatories 26-49, 51-53, 65, *31 66, 71, 73 and 74 were answered by Frank E. Cosgrove; interrogatories 54-63 were answered by…

(concurring).

The point mainly stressed by appellant was the denial of his motion to strike the jury panel and to direct the selection of a new panel “which will be a fair cross section of the community.” The denial, he argues, runs counter to Supreme Court holdings.

In ruling on the motion the trial judge reviewed at length the evidence disclosing the procedure followed in making up the panel. Thiel v. Southern Pacific Co., D.C., 67 F.Supp. 934 . It is probably open to debate whether the practice squares in all respects with the views expressed by the Court in the opinion reversing the earlier judgment, Thiel v. Southern Pacific Co., 328 U.S. 217 , 66 S.Ct. 984 , 90 L.Ed. 1181 , 166 A.L.R. 1412 . Cf. also Ballard v. United States, 329 U.S. 187 , 67 S.Ct. 261 , 91 L.Ed. 181 . The trial judge thought it did. Obviously any method devised in an effort to obtain a fairly representative group of jurors will be open to criticism, for it is not possible even to approximate perfection along this line. Persons qualified and available for jury service do not readily yield to classification in a society so fluid as ours. They cannot be neatly pigeonholed like specimens of rock or mineral.…