Brines By and Through Harlan v. Cibis
| Decision Date | 12 December 1989 |
| Docket Number | No. WD,WD |
| Citation | 784 S.W.2d 201 |
| Parties | Sheila R. BRINES, a Minor Child, By and Through her Next Friend and Conservator, Roxana K. HARLAN, Appellant, v. Gerhard W. CIBIS, M.D., King Y. Lee, M.D., Children's Mercy Hospital, Elwyn S. Brown, M.D., Dorothy Berry, C.R.N.A., and Peter H. Mestad, M.D., Respondents. 41567. |
| Court | Missouri Court of Appeals |
Gary C. Robb and Anita Porte Robb, Robb & Robb, Kansas City, for appellant.
Thomas W. Wagstaff, Timothy M. Aylward, Blackwell Sanders Matheny Weary & Lombardi, Kansas City, for Children's Mercy, Brown and Berry.
P. John Brady and Mark A. Lynch, Thomas A. Sheehan, Shughart, Thomson & Kilroy, P.C., Kansas City, for Cibis and Lee.
Thomas B. Alleman and Gabrielle Rhodes, Niewald, Waldeck, Norris & Brown, Kansas City, for Mestad.
Before MANFORD, P.J., and SHANGLER and CLARK, JJ.
This appeal arises from a medical negligence action brought on behalf of the minor, Sheila Brines, by her mother, Roxana Harlan. A jury returned a verdict in favor of all defendants and this appeal followed.
The facts of the case are only marginally applicable to the dispositive point on appeal. They will be summarized to provide the setting for discussion of the claim of error.
Sheila was born deaf and with congenital glaucoma of both eyes. While Sheila was still an infant, surgery was unsuccessfully attempted to remedy the glaucoma. The result was a loss of sight in her right eye. Some vision in the left eye was retained. In 1984, increased intraocular pressure was detected in Sheila's left eye and defendant Cibis performed surgery to relieve the pressure. Post-operatively, Sheila developed an infection in the eye which defendants Cibis and Lee elected to treat with antibiotics in preference to further surgery. The antibiotics eliminated the source of infection but not before Sheila's remaining vision was destroyed.
Allegations against Cibis and Lee were that the 1984 surgery was unnecessary and that the subsequent eye infection was not timely diagnosed or properly treated. Claims against the hospital, where the treatment was rendered, and against Doctors Brown and Mestad and nurse anesthetist Berry, were 'based on inadequate preoperative assessment which failed to detect an existing upper respiratory infection present when the surgery was performed.
The dispositive issue on appeal is the contention that the trial court erred when it failed to sustain plaintiff's challenge for cause directed toward venireperson Ramos who, at the time of trial, was employed by defendant Children's Mercy Hospital. Failure to excuse Ramos constituted reversible error and entitles plaintiff to a new trial.
The controlling authority on the point is Murphy v. Cole, 338 Mo. 13, 88 S.W.2d 1023 (1935). In Murphy, the defendant owner and operator of a truck which collided with the vehicle in which plaintiff's decedent was a passenger had liability insurance with St. Paul Mercury Indemnity Co. Voir dire of the jury panel called to hear plaintiff's damage suit against the defendant truck driver disclosed that venireperson Steininger was a local agent for St. Paul. Plaintiff challenged Steininger for cause although it appeared Steininger did not write the defendant's policy, knew nothing about the case or the plaintiff and expressed his views to be unbiased. The court overruled the challenge. The jury returned a verdict for plaintiff but in an amount deemed by plaintiff to be inadequate and plaintiff appealed. The court reversed the judgment and remanded the case for a new trial.
In its opinion, the supreme court noted that the statute, which enumerates the grounds upon which a venireperson may be challenged for cause in a civil case (then § 8771, RSMo 1929; now § 494.190, RSMo 1986) does not provide for disqualification of an agent of one of the parties as a juror. The court went on to comment, however, that the statute is not all inclusive as respects challenges for cause and measures for jury selection must accommodate the requirement that the parties to the case are entitled to a full panel of qualified persons. If, for any reason, a prospective juror is not in a position to enter upon the duties of a juror with an open mind, free from bias or prejudice in favor of or against either party, and to decide the case on the evidence and the law, he is not a competent juror. The court expressly held that an agent or employee of one of the parties cannot meet the qualifications of a competent juror and the judgment was reversed for this reason.
The following observation by the Murphy court is instructive as explaining the sense of the holding:
A juror in the employ of one of the parties to a cause might honestly believe he had no bias or prejudice one way or the other, yet it is a matter of common knowledge that the frailties of human nature would cause him, perhaps unconsciously, to view the cause through the spectacles of his employer.
Under the reasoning of Murphy, an employee of a party to the case must be excused upon a challenge for cause and he may not sit as a juror regardless of whether voir dire examination discloses any indication of partiality or bias. This court, of course, is bound to follow the last controlling opinion of the supreme court on the issue presented. Gunter v. State, 754 S.W.2d 594, 596 (Mo.App.1988).
Murphy has been cited in a number of cases since it was decided and it has never been overruled. Most, if not all, of the citations to Murphy distinguish the case under discussion from Murphy on the ground that the challenge was to a venireperson not situated in an employee-employer relation. For example, in Johnson v. Missouri-Kansas-Texas R.R., 374 S.W.2d 1, 3 (Mo.1963), the challenged venireperson had formerly been represented by one of plaintiff's attorneys who was also handling the estate of the venireperson's mother. In the county of trial, no statutory ground for challenge based on attorney-client relation prevailed. The court held the trial court had discretion to overrule the challenge noting that this was...
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