Bass v. Durand
| Decision Date | 21 February 1940 |
| Docket Number | 36314 |
| Citation | 136 S.W.2d 988,345 Mo. 870 |
| Parties | Warren Bass v. Dana Durand and R. Bryson Jones, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.
Reversed and remanded.
Ryland Stinson, Mag & Thomson and Wright Conrad for appellants.
(1) The court erred in overruling defendants' motion, made during the course of the trial, to discharge the jury and declare a mistrial because of the failure of juror Miller to give full and complete answers on voir dire examination and the shown bias and prejudice of juror Miller toward the pivotal and principal witness of the defendant, and in failing to grant defendants a new trial because of bias and prejudice of juror Miller and his failure to make full and complete answers to questions on voir dire examination. Gibney v. Transit Co., 204 Mo. 704, 103 S.W. 43; Pearcy v. Insurance Co., 111 Ind. 59; Heasley v. Nichols, 80 P. 769; Theobald v Transit Co., 191 Mo. 395, 90 S.W. 354; State v. Wyatt, 50 Mo. 309; Billmeyer v. St. Louis Transit Co., 108 Mo.App. 6, 82 S.W. 536; State v. Taylor, 64 Mo. 358; Carroll v. United Rys. Co., 157 Mo.App. 247, 137 S.W. 303; Naylor v. Smith, 46 S.W.2d 600; State v. White, 326 Mo. 1000, 34 S.W.2d 79; Harding v. Fid. & Cas. Co., 27 S.W.2d 778; Murphy v. Cole, 338 Mo. 13, 88 S.W.2d 1023; 50 L. R. A. (N. S.) 958. (2) The verdict is grossly excessive. Wilbur v. Ry. Co., 110 Mo.App. 689, 85 S.W. 671; Clark v. Miss. River & B. & C. Ry. Co., 324 Mo. 406, 23 S.W.2d 174; Donley v. Hamm, 98 S.W.2d 966; Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W.2d 58; Lynch v. Baldwin, 117 S.W.2d 273; Tash v. St. L.-S. F. Ry. Co., 335 Mo. 1148, 76 S.W.2d 690; Colwell v. St. L.-S. F. Ry. Co., 335 Mo. 494, 73 S.W.2d 222.
Charles F. Williams, Homer A. Cope, Cope & Hadsell and Walter A. Raymond for respondent.
(1) Juror Miller answered fully and fairly all questions asked on voir dire. The court properly overruled defendant's motion for a mistrial and for a new trial on the ground of concealment of facts as not supported by the record and also on the ground that no prejudice to the defendant was shown. State v. Trainer, 80 S.W.2d 135; Hoffman v. Dunham, 202 S.W. 431; Bank of Malden v. Stokes, 220 Mo.App. 131, 280 S.W. 1057; Steffen v. S.W. Bell Tel. Co., 331 Mo. 574, 56 S.W.2d 51; Jordon v. St. Joseph Ry., L., H. & P. Co., 335 Mo. 319, 73 S.W.2d 210; State v. Baker, 324 Mo. 846, 24 S.W.2d 1042; State v. Craft, 299 Mo. 332, 253 S.W. 227; State v. Murray, 316 Mo. 31, 292 S.W. 437; Allen v. Chicago, R. I. & P. Ry. Co., 327 Mo. 526, 37 S.W.2d 609; State v. Kaufman, 335 Mo. 611, 73 S.W.2d 219; State v. Wampler, 58 S.W.2d 269; Shields v. Kansas City Rys. Co., 264 S.W. 895; Knight v. Kansas City, 138 Mo.App. 153, 119 S.W. 993; Parlon v. Wells, 322 Mo. 1001, 17 S.W.2d 532; Massman v. K. C. Pub. Serv. Co., 119 S.W.2d 838; Webb v. M.-K.-T. Ry. Co., 342 Mo. 394, 116 S.W.2d 29. (2) The verdict is not excessive for the extremely painful, serious and disabling injuries plaintiff received. Busby v. S.W. Bell Tel. Co., 287 S.W. 438; Cordray v. Brookfield, 88 S.W.2d 166; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 323; Webb v. M.-K.-T. Ry. Co., 342 Mo. 394, 116 S.W.2d 30; Cazzell v. Schofield, 319 Mo. 1169, 8 S.W.2d 588; Brunison v. Souders, 225 Mo.App. 1159, 35 S.W.2d 626; Farthman v. McMahon, 258 S.W. 63; Bradford v. St. Joseph, 214 S.W. 285; Boyd v. Andrae, 44 S.W.2d 894; Tash v. St. L.-S. F. Ry. Co., 335 Mo. 1148, 76 S.W.2d 699; Petera v. Ry. Exchange Bldg., 42 S.W.2d 951; Bowles v. Eisenmayer, 22 S.W.2d 886; Burns v. Polar Wave Ice & Fuel Co., 187 S.W. 149; State ex rel. Stein v. Becker, 334 Mo. 749, 67 S.W.2d 756; Clooney v. Wells, 252 S.W. 76; Baker v. C., B. & Q. Ry. Co., 327 Mo. 936, 39 S.W.2d 546; Brackett v. Black Masonry & Contracting Co., 326 Mo. 387, 32 S.W.2d 292; Wack v. Schoenberg Mfg. Co., 331 Mo. 197, 53 S.W.2d 34; Zumwalt v. C. & A. Ry. Co., 266 S.W. 723; Myers v. C., B. & Q. Ry. Co., 296 Mo. 239, 246 S.W. 261; Clayton v. Wells, 324 Mo. 1176, 26 S.W.2d 974; Whittington v. Westport Hotel Operating Co., 326 Mo. 1117, 33 S.W.2d 969; Hoelzel v. C., R. I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 131; Melican v. Whitlow Const. Co., 278 S.W. 367; Talbert v. C., R. I. & P. Ry. Co., 321 Mo. 1080, 15 S.W.2d 765.
Westhues, C. Cooley and Bohling, CC., concur.
Respondent Bass filed this suit against appellants to recover damages for personal injuries alleged to have been sustained when a car driven by appellants collided with a delivery truck driven by respondent. There was a verdict and judgment in respondent's favor in the sum of $ 20,000 from which judgment appellants appealed. The conclusion reached by us renders unnecessary a statement of the facts on the merits.
Appellants briefed two points. We need consider only the first, which is, that the trial court erred in not declaring a mistrial while the trial was in progress when it was discovered that one of the jurors had failed to disclose facts, on voir dire examination, touching his qualification as a juror. Juror Miller was the subject of this controversy. Dr. Rex Diveley was one of appellants' principal witnesses. The voir dire examination, insofar as pertinent to the issue, was as follows:
Juror Miller remained on the panel to try the case and the record shows that he was made foreman of the jury. After Dr. Diveley testified, he informed the attorney for the appellants that juror Miller had filed a suit against him, the witness, and other doctors to recover damages for the death of the juror's son; that ill feeling grew out of that lawsuit. The facts then developed were these: Juror Miller's son had been seriously injured in a car accident and was treated by Dr. Diveley. The patient died. A suit was filed against the parties involved in the car accident to recover damages for the injuries sustained by the son. After his son's death juror Miller filed suit against Dr. Diveley and his associates to recover $ 10,000 actual and $ 10,000 punitive damages. The petition charged that the doctors had not properly treated the injuries sustained by the juror's son and that the negligence of the doctors was the cause of his death. Both suits were settled without trials prior to the time the present case was tried. The case against Dr. Diveley was dismissed about fourteen months before the trial of this case. The record shows that the attorney for the appellants, immediately upon receiving the information from Dr. Diveley, informed the court what he had learned. He then made a further investigation, made a statement of the facts in full, and asked that a mistrial be declared. The attorney suggested that if the opposing counsel so desired he would make the statement under oath. Respondent's attorney stated that that was not necessary. The facts as above related were treated as if made under oath. The trial court suggested that juror Miller be excused and the trial proceed with eleven jurors. Appellants' attorney indicated his willingness to do so, but respondent's attorney would not agree. The trial court then proceeded with the trial over appellants' objection. The question is here for review.
It seems too plain for argument that juror Miller intentionally failed to disclose the fact that he had had a lawsuit against Dr. Diveley for malpractice. He did disclose that he had had a lawsuit arising out of the automobile accident for the injuries sustained by his son, but his answers to questions were limited to that suit. He was specifically questioned as to his acquaintance with Dr Diveley, and anwered that the doctor had treated his son. Then note: "Have you ever had any other experience with Dr. Diveley other than that particular professional care rendered your son?" Answer by juror Miller: "That is all." The fact remains that was not all and the juror knew it was not. What transpired after the trial fully disclosed that the juror knew he was not giving all the information he should, and that the juror had not forgotten the lawsuit with the doctor wherein he sought not only actual but punitive damages. Note a portion of the juror's...
To continue reading
Request your trial
-
Piehler v. Kansas City Public Service Co.
...and 1944 he had a claim against the appellant. In the circmstances "it is difficult to conceive how that could be harmless error." Bass v. Durand, supra; Gibney St. Louis Transit Co., 204 Mo. 704, 103 S.W. 43; Schierloh v. Brashear Freight Lines, (Mo.) 148 S.W.2d 747. In view of this dispos......
-
Reich v. Thompson
...court may consider the question on a motion for a new trial, upon oral testimony. Lee v. Baltimore Hotel Co., 136 S.W.2d 695; Bass v. Durand, 136 S.W.2d 988; Massman v. Kansas City Pub. Serv. Co., 119 838; Harding v. Fidelity & Cas. Co. of New York, 27 S.W.2d 779. (b) The statutes do not re......
-
Reich v. Thompson, 36595.
...biased and prejudiced. The trial court was not bound by the testimony of the juror that he was not biased and prejudiced. [Bass v. Durand, 345 Mo. 870, 136 S.W. (2d) 988, 990; Gibney v. Transit Co., supra (204 Mo. l.c. 719, 103 S.W. 43).] In view of the action of the court in sustaining the......
-
Anderson v. Burlington Northern R. Co., 44977
...deliberate deception. "Honest men do not hesitate to divulge information touching their qualifications as jurors." Bass v. Durand, 345 Mo. 870, 136 S.W.2d 988, 990 (Mo.1940). Bias and prejudice of a juror is inferred from intentional concealment. Girratono v. Kansas City Public Service Comp......