Anderson v. Burlington Northern R. Co., 44977

• Citation: 651 S.W.2d 176
• Decision Date: 19 April 1983
• Docket Number: No. 44977,44977
• Parties: Harold E. ANDERSON, Plaintiff-Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 176

651 S.W.2d 176

38 A.L.R.4th 255

Harold E. ANDERSON, Plaintiff-Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation,

Defendant-Appellant.

No. 44977.

Missouri Court of Appeals,

Eastern District,

Division One.

April 19, 1983.

Edward W. Mullen, Derek E. Wood, Deacy & Deacy, Kansas City, for defendant-appellant.

C. Marshall Friedman, Newton G. McCoy, Friedman, Weitzman & Friedman, P.C., St. Louis, for plaintiff-respondent.

GAERTNER, Judge.

Defendant, Burlington Northern Railroad Company, appeals from the judgment entered in favor of plaintiff, Harold E. Anderson, in the sum of $1,067,000.

On May 6, 1977, plaintiff was an employee of defendant. His duties required him to ream bolt holes in the metal flooring of hopper cars. He used an air-powered reamer, the exhaust from which caused the metal shavings to be blown into his face at times. He was wearing safety glasses or spectacles but they did not prevent particles of metal from being blown into his eyes. There was conflicting evidence regarding the availability to plaintiff and the use by other employees of various types of safety goggles. While reaming a hole with the exhaust blowing into his face, plaintiff felt a pain in his left eye. After finishing the last hole, he went to his foreman, obtained eye wash, and washed his eye. His eye continued to hurt over the weekend. Although his eye continued to hurt, he worked on Monday. On Tuesday he returned to work and was sent to a doctor who removed a piece of metal from his eye and who attempted to clean the eye by means of drilling into it. He continued to work and to visit the doctor because of pain. On May 22 plaintiff was admitted to the hospital. Surgical efforts to save the eye were unsuccessful and it was eventually enucleated.

Defendant's first point on appeal is that it is entitled to a new trial because of misconduct of the jury foreman. During the voir dire examination of prospective jurors, plaintiff's attorney inquired whether "any of you or your immediate family had been a party to a lawsuit, ..." Three veniremen responded and were questioned briefly concerning their experiences. Subsequently, defendant's counsel asked "is there any member of this panel or member of your family who now has or has ever had a lawsuit against anybody for money damages; whether it's because of a bodily injury, or maybe it was a libel case, the St. Louis Post Dispatch said something you didn't like, or whatever it might have been? Any of you folks or members of your family who have ever sued anybody for money damages whether or not any lawsuit was filed? I think we've already heard about Mrs. Moretto, briefly. Whether or not a lawsuit was filed, is there anybody else on the panel who has ever made a claim against anybody for money damages or member of your family has made such a claim because of a bodily injury?" Two veniremen responded concerning claims made by reason of bodily injury sustained by their brothers in automobile accidents. Three others told of injuries which they personally had sustained and for which they had been compensated. One mentioned a personal injury claim made against his parents. At the conclusion of his discourse with these six members of the panel, defendant's attorney asked, "is there anyone else who has had a similar experience where you or some member of your family has had a claim for some kind of bodily injury?"

Eugene A. Krus, Jr. became the foreman of the jury. During all of the dialogue concerning lawsuits and claims for bodily injuries sustained by veniremen or members of their families, he remained mute. He was called as a witness on defendant's motion for a new trial. Krus then admitted that his brother had sustained facial injuries in an automobile accident. He recalled that some five years before the present trial, his brother and his parents had spent three days attending the trial of the lawsuit resulting from this injury and that the jury in that trial returned verdicts in favor of his brother and his parents which totalled in excess of $20,000. At the time of the accident and of that trial he was unmarried and resided with his parents and brother. Krus further testified at the post-trial hearing that he remembered the questions regarding injuries and lawsuits by veniremen or members of their families. He volunteered, "you brought it to our attention maybe three or four times." As an explanation for his failure to answer the question, he testified "mostly the reason why I didn't say anything about my brother--in fact, it did cross my mind about my brother, but I recently did get married a year ago, and as far as I'm concerned, my family is my wife and myself...." However, he testified that prior to his marriage he lived with "[m]y father and my mother and my family, my brothers and sisters." When asked if he had heard two others on the jury panel respond to the questions by advising of injuries sustained by their brothers, Krus answered that he would have disclosed the facts concerning his brother "if I wasn't married and I was living in my mother and father's house...." He further stated that when the question was asked "I distinctly remember thinking of my brother, because that's the only lawsuit I remember in our family." Krus also admitted that after learning that the railroad attorney wanted to question him on this matter, he telephoned plaintiff's trial counsel, gave a signed statement to one of his associates and refused to talk to the railroad attorneys.

The principles guiding our review of this issue are well stated in Marshall v. Brown, 608 S.W.2d 105, 109 (Mo.App.1980),

"Intentional concealment of information on voir dire may be grounds for the granting of a new trial, since bias and prejudice of the veniremen may be inferred from such concealment. Beggs v. Universal C.I.T. Credit Corp., 387 S.W.2d 499, 503 (Mo. banc 1965); Triplett v. St. Louis Public Service Co., 343 S.W.2d 670, 672 (Mo.App.1961). Unintentional failure to disclose information does not necessarily give rise to such an inference. Triplett, supra, 673. Determination of whether concealment was intentional or not is left to the discretion of the trial court, its ruling to be reversed only upon a clear showing of abuse of that discretion."

We have analyzed the many decisions regarding the failure of a prospective juror to respond to questions on voir dire regarding his or her family experiences with claims and litigation. This analysis reveals that the courts have almost universally ordered a new trial where the failure to disclose was made with the juror's understanding of the question and his then present awareness of the prior experience. Where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and where it develops that the prospective juror actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable, failure to disclose is held to be intentional. Intentional nondisclosure as determined by these factors, has become tantamount to a per se rule mandating a new trial regardless of the action taken by the trial judge in ruling upon the motion for a new trial.

In Marshall v. Brown, 608 S.W.2d 105 (Mo.App.1980), prospective jurors were asked in voir dire if they ever made a claim for money damages. One prospective juror did disclose her involvement in an accident, her injuries and one call to an insurance adjuster. Her further answers indicated that upon the adjuster's advice that "they didn't pay off for anything like that," she made no claim. However, post trial investigation disclosed she in fact had made a number of calls to the adjuster, estimated at four, and had filled out and signed a written claim form. This court found an abuse of discretion on the part of the trial court in accepting the explanation that "claim" was not understood to encompass a request for compensation for injuries which was refused.

"We find the trial court's ruling that the concealment was unintentional in this case to be unsupported by the record of the voir dire proceedings and the juror's testimony at the hearing on defendant's motion for new trial."

Marshall v. Brown, 608 S.W.2d at 110. This court reversed the judgment and remanded the cause for a new trial.

Triplett v. St. Louis Public Service Co., 343 S.W.2d 670, 672 (Mo.App.1961), is somewhat analogous to the instant case. In Triplett, a prospective juror was asked whether "you or any member of your family or someone living in your household ever had a claim or lawsuit against any person or company," to which he responded "no, sir." The prospective juror claimed misunderstanding in that he believed the question concerned lawsuits by members of his family rather than by himself. Noting the repetition of the identical question and the responses by six other prospective jurors, the court reversed the trial court's acceptance of this excuse. The explanation "unduly taxes our credulity." Triplett v. St. Louis Public Service Co., 343 S.W.2d at 675. The cause was remanded for a new trial.

In Brady v. Black & White Cab Company, 357 S.W.2d 720 (Mo.App.1962) the court held it discretionary for the trial court to determine if the concealment or non-disclosure was intentional or merely based upon forgetfulness. However, where the juror testified that he remembered his wife's claim but did not recall enough details to enable him to answer questions about it, the trial judge abused his discretion by accepting such an excuse. The case was remanded for a new trial.

Similar action was taken by the supreme court in Beggs v. Universal C.I.T. Credit Corporation, 387 S.W.2d 499, 503-504 (Mo. banc 1965). The Court stated:

" 'In the final analysis, therefore, the question of what result should follow the failure of a juror to correctly answer a question touching his qualifications depends upon whether or not he was...