Brady v. Black & White Cab Co.

• Decision Date: 02 April 1962
• Docket Number: No. 23529,23529
• Citation: 357 S.W.2d 720
• Parties: Ethel BRADY, Plaintiff-Respondent, v. BLACK AND WHITE CAB COMPANY, Defendant-Appellant, and Juanita Pantoja, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 720

357 S.W.2d 720

Ethel BRADY, Plaintiff-Respondent, v. BLACK AND WHITE CAB COMPANY, Defendant-Appellant, and Juanita Pantoja, Defendant-Respondent.

No. 23529.

Kansas City Court of Appeals, Missouri.

April 2, 1962.

John R. Gibson (Morrison, Hecker, Cozad & Morrison), Kansas City, for appellant.

Keith K. Couch and James L. Williams (McKenzie, Williams, Merrick, Beamer & Stubbs), Kansas City, for respondent-defendant.

Paul H. Niewald (Sanders & Niewald), Kansas City, for respondent.

HUNTER, Presiding Judge.

This litigation arises out of an intersectional collision in Kansas City between a Ford automobile being driven by defendant-respondent, Juanita Pantoja, and defendant-appellant, Black and White Cab Company's taxicab being driven by Irvin Gordon. On the afternoon of December 18, 1959, plaintiff-respondent, Ethel Brady, was a passenger in Mrs. Pantoja's automobile traveling east on 19th Street when it collided with defendant's vehicle southbound on Walnut Street. The impact occurred in the intersection of 19th and Walnut Streets. There was a traffic light in operation there at the time.

Plaintiff brought suit in the Circuit Court of Jackson County against both her driver, Mrs. Pantoja, and the taxicab company. The jury found the issues for Mrs. Pantoja and against the taxicab company in the sum of $8,000.00. Judgment was entered accordingly.

Thereafter, a motion for new trial was duly filed on behalf of defendant-appellant taxicab company. Before this motion could be heard the trial judge before whom the case had been tried became ill, and it was necessary for the motion to be heard by another judge of the circuit court properly assigned for that purpose. This judge overruled the motion and the taxicab company has appealed.

In view of the disposition we make of this appeal, a brief statement of the facts concerning the collision will suffice.

Plaintiff testified she was traveling east on 19th Street in Mrs. Pantoja's car, and when the car in which she was riding was about a half block back, traveling at a constant speed of 20 miles per hour, the traffic signal light at 19th and Walnut was green for eastbound traffic. She saw this light turn amber as the car reached the west line of the crosswalk (the 19th Street crosswalk on the west side of the intersection). When the car had gone into the intersection 'a little less than halfway' she saw the taxicab coming up to the crosswalk lines on Walnut at a constant rate of speed of at least 25 to 28 miles per hour. The taxicab was in the third lane to the east as it reached the intersection, and when the cab driver 'got very close to us, (not more than 5 or 6 feet) he looked up and had a very surprised look on his face.' Neither car slowed down, braked, or turned and the cars collided when the front of Mrs. Pantoja's car was just a few feet short of the crosswalk lines on the east side of 19th Street. 'Q. And it (taxicab) came against the red light? A. Yes.' Right after the impact she glanced up and the light for eastbound traffic on 19th Street had changed from yellow to red.

It was Mrs. Pantoja's testimony that when she was about a half block away and proceeding at 20 miles per hour east on 19th Street toward Walnut the traffic light at 19th and Walnut was green for eastbound traffic. When she was between 4 to 6 feet east of the west curb line of Walnut Street the light turned yellow. She proceeded on with unchanged speed and unchanged direction to the point of impact near the middle of the intersection. She did not see the cab prior to the collision. She stated the light for eastbound traffic did not turn red while she was in the intersection before the collision. On cross-examination she stated she did not know what the color of the light was at the time of impact.

The driver of the taxicab, Irvin Gordon, testified that he was going 20 miles an hour south on Walnut, a four lane one way street, in the third lane to the east and that he never moved out of that lane. The traffic light in question was green for him when he was 20 feet beyond the intersection at 18th Street headed toward 19th Street. He entered the 19th Street intersection on the green light, and it was still green after the impact. He never saw the Ford car until he was about 5 feet from it. At that time he was 'around the middle of the intersection.' He never changed his speed or direction.

Carl Felt, an independent witness, testified on behalf of defendant Cab Company that he was driving south on Walnut behind the taxicab; that the taxicab approached and entered the 19th Street intersection on the green light, and that it remained green until after the impact.

Ruth Montoya, sister of Mrs. Pantoja, also a passenger in the Ford car, testified the traffic light was green for eastbound traffic on 19th Street as they approached the 19th Street intersection. She did not again observe it.

Ruth Chacon (now deceased) a passenger in another car and a witness to the accident, testified, by deposition. In a rather unclear fashion she stated that at the time the cab started into the intersection the light was red (for the taxicab), and after Mrs. Pantoja's car was in the intersection the light changed.

The first question before us is whether the judge who heard the motion for new trial erred in refusing to grant a new trial on the ground that Juror Ralph M. Jones on voir dire examination intentionally failed to truthfully answer certain questions and to disclose information concerning claims and lawsuits asserted by him and his wife. Appellant Cab Company contends there was intentional concealment of this information; that such concealment demonstrated bias and prejudice on the part of the juror, and resulted in the Cab Company being deprived of a jury composed of twelve fair and impartial persons.

A summary of the more pertinent portions of the voir dire examination is in order. At the commencement of that examination plaintiff's counsel told the panel, 'Now, as I ask these questions (concerning your qualifications to sit on this jury), or if any of the attorneys ask these questions, don't hesitate if it requires an answer to raise your hand and let us know, because we have to ask these questions to determine your qualifications. The reporter, of course, is taking this down, so it would help us if you would answer frankly, and if you have any questions, if you are not sure that the answer is in the affirmative or not, let us know, so that we can go into the matter, because this is important. If you don't answer these questions or if it doesn't get into the record and then later something would be found about that, it could upset the whole trial.' Thereafter, plaintiff's counsel asked, 'whether there are any members of the jury panel who have ever been a plaintiff in a lawsuit? In other words, the plaintiff is a party bringing the lawsuit against someone else.' Several of the panel responded, advising of lawsuits in which they had been plaintiffs and they were examined about those cases. Then the question was repeated, and plaintiff's counsel added, 'Now, if you are not sure what a plaintiff is, and you think you may have been a plaintiff, don't hesitate to let us known, because we want to inquire into these things, and we want the record to be straight on it?' Throughout all of this Juror Jones remained silent.

The next questions were limited to 'where you have been involved in an automobile accident and made a claim', etc. Thereafter, counsel asked: 'Have you or any member of your immediate family ever been the plaintiff in a personal injury lawsuit?' Juror Jones remained silent. The following question was, 'Any person who has had a member of your immediate family as a plaintiff in a personal injury lawsuit?' Several others on the panel responded to this question which was from time to time repeated but Juror Jones remained silent. The next question was, 'Anyone else? Either them personally or a member of your immediate family had a lawsuit for personal injuries?' Juror Jones made no response.

Near the close of the lengthy voir dire examination, the question asked was, 'Is there any one else has been searching their memory for the last few questions who recalls any circumstance under which they or any other members of their family may have been a plaintiff in a personal injury lawsuit?' Juror Jones remained silent. The next question was, 'Have you or any member of your immediate family ever had a claim for personal injuries which did not necessitate the filing of a lawsuit, simply a claim made and either settled or denied?' One panel member answered, but Juror Jones continued to remain silent. Twice, thereafter, the panel was asked 'Anyone else who has had a claim or any member of your immediate family.' Several members of the panel volunteered information but Juror Jones remained silent.

The final question on this subject was, 'I take it by your silence, then, that we have now covered all persons who have been plaintiffs or had claims or workmen's compensation claims?' Additionally, the panel was inquired of, 'Now, have you or any member of your immediate family ever sustained through any cause an injury to your neck region? Any person on the panel, either personally or any member of your family, that sustained an injury to the neck?' Although one panel member spoke up, Juror did not.

At the hearing on the motion for new trial filed by defendant-appellant Cab Company evidence to the following effect was adduced: Mr. Thomas E. Deacy, a Kansas City attorney, stated that as a result of an automobile accident which occurred on July 1, 1953, he filed on behalf of a Mr. Bigler a suit against Mrs. Ralph M. Jones, wife of the panel member, and Mrs. Jones filed a counterclaim against Mr. Bigler for $25,000. Her alleged injuries were of a serious nature and included serious injury to her neck. Then a separate suit was filed on behalf of Ralph M. Jones for $15,000 against Mr. Bigler...