Beggs v. Universal C. I. T. Credit Corp., 51144

• Decision Date: 08 March 1965
• Docket Number: No. 51144,51144
• Citation: 387 S.W.2d 499
• Parties: William J. BEGGS, (Plaintiff) Respondent, v. UNIVERSAL C. I. T. CREDIT CORPORATION, a Corporation, (Defendant) Appellant.
• Court: Missouri Supreme Court

Page 499

387 S.W.2d 499

William J. BEGGS, (Plaintiff) Respondent, v. UNIVERSAL C. I. T. CREDIT CORPORATION, a Corporation (Defendant) Appellant.

No. 51144.

Supreme Court of Missouri, En Banc.

March 8, 1965.

Lawrence F. Gepford, Donald L. Mason, John J. Hager, Kansas City (Mason, Gant, Gepford & Moran, Kansas City, of counsel), for respondent.

John W. Schwartz, Preston H. Longino, Kansas City, for appellant.

HOLMAN, Judge.

In this action plaintiff alleged that defendant unlawfully took possession of his truck (tractor) and towed it in a manner that caused it to be badly damaged. He sought actual damages in the sum of $2,900 and $15,000 for punitive damages. The trial resulted in a verdict for plaintiff in the amount of $2,500 actual and $13,000 punitive damages. As a condition for overruling the motion for new trial the court required a remittitur of $1,612.46 of the actual and $2,000 of the punitive damages. Plaintiff filed the remittitur and a final judgment was entered for plaintiff in the sum of $887.54 as actual damages and $11,000 as punitive damages, an aggregate of $11,887.54. Defendant appealed to the Kansas City Court of Appeals and that court adopted an opinion affirming the judgment. Upon defendant's application, we ordered the case transferred to this court and it will be determined here 'the same as on original appeal.' Civil Rule 84.05(h), V.A.M.R.; Mo.Const. Art. V, Sec. 10 (1945), V.A.M.S.

On the dates hereinafter mentioned plaintiff was engaged in the trucking business. He had no certificates for public routes but engaged in private hauling primarily of heavy construction materials. He owned two Diamond T trucks, both of which were painted red. The 1958 model was a gasoline truck with a single axle, while the other was a 1959 diesel with double axle and vertical exhaust. The '58 truck cost about $8,000 and plaintiff obtained the purchase price by mortgaging it to his home bank. He purchased the '59 truck from the Hastings Motor Company of Hastings, Nebraska, for about $20,000, and financed it by executing a chattel mortgage for $19,837 to be paid at the rate of $550 per month. The motor company sold that mortgage to defendant Universal C.I.T. Credit Corporation.

On April 14, 1961, plaintiff was delinquent three payments on his '59 diesel, and a fourth payment became due that day. He had frequently been delinquent in his payments and on several occasions had given checks which did not clear the bank because of insufficient funds. For some time defendant had had difficulty in locating plaintiff and the truck on which it held a mortgage. Defendant had transferred the account to its Kansas City office and an employee of that office, Ray Price, had been instructed to collect the delinquent payments, or take possession of the truck. Late in the afternoon on the date above mentioned Price located plaintiff at the lot of Blue Valley Transfer Company. The '58 truck had just been driven onto the lot by plaintiff's driver, Lyle Marlay. Marlay testified that he parked the truck, locked the cab, and left the transmission in gear. Price told plaintiff he would have to pay three payments at that time or he would take possession of the truck. Plaintiff said he could not get the money until the following morning, but Price told him he would take possession of the truck and, if the payments were made the next day, the truck would be returned to plaintiff. Plaintiff testified that he told Price that defendant had no lien on the truck parked on the Blue Valley lot. Price denied that in his testimony and Marlay testified that he didn't hear any such statement. Plaintiff and Marlay then left the premises, and Price called a wrecker and had the '58 truck (which he obviously thought was the '59 truck upon which the defendant had a lien) towed away.

Three or four days later plaintiff found the truck on a filling station lot on South Main Street in Kansas City. He was of the opinion that the truck had been considerably damaged by having been towed while in gear, although Price testified that the cab was not locked and that the operator of the tow truck took the truck out of gear before starting the towing operation. Plaintiff had the truck towed to an International Harvester garage where repairs were made during the following week or ten days. Plaintiff later paid $1,090 for the repair work but conceded that at least $250 of that amount was for repairs that had no connection with the damage allegedly caused by defendant. Plaintiff also testified that he lost from $500 to $600 in profits from loss of use of the truck during the time it was being repaired.

In its motion for new trial defendant alleged that it discovered, after the trial, that four jurors had failed to answer appropriate questions or had made false answers on voir dire examination, and had wilfully concealed certain facts concerning litigation in which they had been involved and financial difficulties they had had with other finance companies. The four jurors, Emory J. Holder, Nicholas Hernandez, Carl A. Bendert, and Donald R. Fitzgerald all testified at the hearing of the motion for new trial.

Near the beginning of the voir dire examination Mr. Gepford, plaintiff's counsel, asked, 'Is there anybody on the panel who is now a plaintiff or defendant in a lawsuit? In other words, anybody who is suing somebody or who has been sued by somebody?' Mr. Holder then stated that he was a plaintiff in an automobile damage suit that had been pending about four years. Then the following question was asked: 'Anybody else who is now a plaintiff or defendant in a lawsuit? Is there anybody who has been in the past a plaintiff or defendant?' In answer to that question a number of the jurors gave information concerning past lawsuits that they had been involved in, but nothing was said by any of the four jurors heretofore named. The panel was then examined by Mr. Schwartz, one of defendant's counsel. He asked this question: 'Have any of you had any lawsuits or damage suits or claims of any kind against anybody, either as individuals or corporations, other than the ones who have told us here, told Mr. Gepford when he asked the question? To save time we will not go over it again. If there is any additional, we would like to know it at this time.' None of the four jurors here involved made any response to that question.

Thereafter, each juror on the panel was examined individually by the attorneys. Each member of the panel was asked by Mr. Schwartz a question substantially in this form: 'Have you ever had any trouble with any finance company?' We will hereafter give the questions asked the abovenamed jurors and in the same paragraph state their testimony at the time the motion for new trial was heard.

Carl A. Bendert: This prospective juror testified on voir dire as follows: 'Mr. Schwartz: Have you ever had any trouble with any finance company in any way, shape or from? Mr. Bendert: No.' At the after-trial hearing he testified as follows: 'Mr. Schwartz asked you, 'Have you ever had any trouble with any finance company in any way, shape or form?' You answered 'No.' Now, in May 1962, didn't G.M.A.C. reposses an automobile from you? A. Yes, they did, but it wasn't actually any trouble. Q. Just answer my question. Was that because of back payments? A. Yes, sir. Q. How many payments were you behind? A. Three payments, I think. Q. You didn't tell us that when Mr. Schwartz asked that question, did you? A. No, because I didn't think it had any bearing on anything else except my personal business. Q. It was in your mind when you answered that question? A. Well, yes, I knew it. * * * Q. Now, did you ever have any problems with the Hickman Mills Bank taking back stuff of yours? A. Yes, I did. Q. Was that a TV, camera, automobile? A. Yes, sir. Q. And when did that happen, in July of 1961? A. Somewhere along there, yes. Q. Did you recall that when that question was asked you by Mr. Schwartz? Did you know that when he asked you that question? A. As I say again, I didn't think that had any bearing. Q. But you did know it, you remembered it when the question was asked you? A. Yes, I knew it.'

E. J. Holder: This juror testified on voir dire as follows: 'Mr. Schwartz: No trouble with any finance company? Mr. Holder: No.' At the later hearing he gave the following testimony: 'You remember being asked about having problems with finance companies? A. Yes. Q. Your answer was 'No.'? A. That is true. Q. Isn't it true that the Associated Discount Corporation filed a suit against you for repossession of an automobile in Judge Blackburn's court? A. That is true. Q. When was that? A. I don't recall exactly when it was. Q. Could it have been on the 25th of July, or thereabouts, 1960? A. Could have been, yes. Q. They got a judgment against you for $1,274.27 and repossession of the automobile, is that right? A. That is probably correct.' Mr. Holder also testified that he had owed some $1,600 to Bankers Investment Company and it had repossessed a car from him; that in March 1962 he filed a petition in bankruptcy because he had been unable to pay the finance companies heretofore mentioned and also could not pay two lumber companies, and City Block & Products Company which had filed suits against him and obtained judgments. When asked to explain why he had not disclosed these repossessions on voir dire examination he replied, 'I didn't consider it trouble. It was trouble for me, because I was loser, but not as to feeling ill against the finance company--because they were merely fulfilling their end of the contract and I wasn't.' Later in the examination he stated that he 'didn't think about it at all. It was past history as far as I was concerned.'

Nicholas Hernandez: This juror likewise responded in the negative when asked if he had had any trouble with...