Brown v. Bryan

• Decision Date: 11 September 1967
• Docket Number: No. 1,No. 52292,52292,1
• Citation: 419 S.W.2d 62
• Parties: Gloria BROWN and George Brown, Appellants, v. Henry Eugene BRYAN, Respondent
• Court: Missouri Supreme Court

Page 62

419 S.W.2d 62

Gloria BROWN and George Brown, Appellants, v. Henry Eugene BRYAN, Respondent.

No. 52292.

Supreme Court of Missouri, Division No. 1.

Sept. 11, 1967.

Motion for Rehearing or to Transfer to Court En Banc Denied

Oct. 9, 1967.

Robert L. Shirkey, Dale Beal, Kansas City, for appellants.

E. E. Thompson, Thos. J. Conway, Jr., Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.

HIGGINS, Commissioner.

Action by Gloria Brown in Count I for $40,000 damages for personal injuries, and by George Brown in Count II for $10,000 damages for loss of services. They appeal from verdict and judgment for defendant.

Count I averred that plaintiff Gloria Brown was riding as a paying group rider in an automobile owned, operated, and in the exclusive possession and control of defendant Henry Bryan; that as the automobile was turned left at an intersection, the right front door suddenly flew open causing plaintiff to be thrown out of the automobile onto the pavement and injured; that the door was caused to open by reason of negligence of defendant, the exact cause being unknown to plaintiff but peculiarly within the knowledge of defendant.

Count II adopted these allegations in making claim for plaintiff husband's loss of services.

Defendant's answer admitted plaintiffs' residence and marital status and that plaintiff wife was a paying group rider in his automobile. All other allegations were denied and Mrs. Brown's injuries were attributed to her own negligence.

The sufficiency of evidence to make a case under plaintiffs' petition is not in question.

Appellants complain of the court's ruling on the voir dire examination where the following took place:

'MR. SHIRKEY (for plaintiffs): Now, this case here is brought against the defendant upon a theory of the law which we call the fact that it happened speaks for itself and inferentially, or we can infer from the way it happened, that the defendant was negligent, in that, ordinarily, when cars are driven down the street and corners are turned, doors do not come open and passengers fall out, or as we may use the term, circumstantial evidence to indicate that such a driver was negligent in the maintenance, the care and operation of his automobile. Now, if His Honor tells you--

'MR. CONWAY (for defendant): Your Honor I would like to object to that at this point. The case has not been submitted yet and the theory upon which it will be submitted will be determined at the time.

'THE COURT: The objection will be sustained.

'MR. SHIRKEY: Will you require this lady to show to your satisfaction the specific reason of why this door came open if His Honor instructs--

'MR. CONWAY: Your Honor, I'd like to make the same objection. THE COURT: The objection will be sustained and the jury will disregard the last remark. MR. SHIRKEY: I would like to make a record.

'WHEREUPON, the following proceedings were had WITHIN THE PRESENCE BUT WITHOUT THE HEARING OF THE JURY:

'MR. SHIRKEY: My question was, I propose to propound to the jury, would they require this lady to show the specific reason why this door came open and what was wrong with it--MR. CONWAY: I can hear him back here.

'MR. SHIRKEY: (Continuing)--before you would ever award any money damages for her injuries. I should like to know if anyone feels this way because I'm going to rely upon the law that in certain situations it is impossible for us to prove exactly what caused her injury and we're going to rely upon the circumstantial evidence to speak to cause us to believe that it happened as a result of negligence of the law of res ipsa loquitur.

'THE COURT: I understand your theory but--and the Court will instruct the jury as to the law at the conclusion of the case, and I believe you're getting into the field here--a dangerous field, in regard to this. Until the Court hears the evidence I can't tell you how the law will be and I presume you're basing your theory on what you hope and expect the evidence to be and I think it would be prejudicial to make this statement.

'MR. SHIRKEY: But the point of my question is this; I want to know if the jury is going to require us or any one of them, such as Mr. Hamm expressed a feeling a moment ago about a certain situation, would require us to show to them what happened and if we didn't show that then we're not entitled to recover, but I want to know if there's anybody with such a feeling.

'THE COURT: I think we're getting into dangerous territory.'

The gist of the argument is that appellants were precluded from their constitutional right to 'a fair and impartial jury,' Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 698(6), 127 A.L.R. 711; Webb v. Missouri-Kansas-Texas R. Co., 342 Mo. 394, 116 S.W.2d 27, 29(5); McMonigal v. North Kansas City Development Co., 233 Mo.App. 1040, 129 S.W.2d 75, 83(14); Tate v. Guinta, Mo., 413 S.W.2d 200, from determining if any juror 'has formed or expressed an opinion concerning' the case, Section 494.190, V.A.M.S., or from determining grounds of disqualification other than statutory grounds, Barb v. Farmers Ins. Exchange, Mo., 281 S.W.2d 297, 301(1), Lineker v. Missouri-Kansas-Texas R. Co., Mo.App., 142 S.W.2d 356, 359(6), because they were circumscribed in inquiring whether the jurors would require proof of a specific reason for the door to come open and what was wrong with it before awarding damages in this res ipsa loquitur or circumstantial evidence of negligence case.

Control and extent of the voir dire examination rests necessarily in the sound discretion of the trial judge and an appellate court will interfere only upon demonstration of manifest abuse of that discretion and probability of injury to the complaining party. Olsten v. Susman, Mo., 391 S.W.2d 331, 335(6, 7); Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802, 807(7--10); Bunch v. Crader, Mo.App., 369 S.W.2d 768, 771(4); Linstroth v. Peper, 203 Mo.App. 278, 218 S.W. 431, 435(2, 3).

Appellants say that 'the individual juror's feeling concerning circumstantial evidence is unknown' but they neither asked nor offered to ask whether any of the prospective jurors would refuse to find defendant negligent on circumstantial evidence. Instead, they announced 'the theory of law' which they intended to invoke and were proceeding in the manner of an attempt to have the jurors speculate or commit themselves as to what they would do under instructions which the court might give later in the trial.

A similar situation arose in State v. Katz Drug Co., Mo., 352 S.W.2d 678, 684(4), where the state was permitted to question several jurors and receive affirmative answers to such as the following: "Now, if I prove * * * that February 22, 1959, was a Sunday, and that the Katz Drug Company * * * sold goods, wares and merchandise which were not medicines or drugs and not items of immediate necessity, and if the Court instructs you that that is a violation of the law, will you convict? ' This was an improper attempt to commit jurors before they had heard evidence, instructions of the court or argument of counsel. As we said in State v. Heickert, Mo.Sup., 217 S.W.2d 561, 562: '(C) ounsel has no right on voir dire to cause the prospective jurors to pledge or speculate as to their action in certain contingencies which may later occur or arise during trial.'' See also State v. Katz Drug Co., Mo.App., 362 S.W.2d 80, 82--83(2). In State v. Bolle, Mo., 201 S.W.2d 158, 159(2, 3), appellant's complaint of undue restriction in the voir dire was denied and, appropriate to this case, the court approved the trial judge's comment: "I am going to sustain the objection. I will grant you the privilege of examining, but I will not accord you the privilege of explaining the law or what I will instruct on." For an extensive review of the law governing voir dire examinations, see Smith v. Nickels, Mo.App., 390 S.W.2d 578, 581(3--5). The voir dire question asked by defendant was: 'Would any of you hesitate to find in favor of my client if you felt that my client wasn't to blame for this accident?' Plaintiff's objection was that the question was an attempt to get a commitment from the jury prior to hearing the evidence. Defendant had a verdict and award of a new trial to plaintiff was affirmed. Among other observations on voir dire, the court said it 'should be liberally permitted where calculated to expose prejudice; conversely, where it is calculated to create prejudice, it should be denied. * * * An established limitation prevents those questions tending to commit the prospective juror to a course of action, or asking that he speculate what his reaction might be in such manner that he might not feel free to react otherwise.' See also National Bank of Rolla v. Romine, 154 Mo.App. 624, 136 S.W. 21, 22(1).

Appellants have not demonstrated an abuse of discretion. Eickmann v. St. Louis Public Service Co., supra, 323 S.W.2d l.c. 807(10). Their citations of State v. West, 69 Mo. 401, State v. Young, 119 Mo. 495, 24 S.W. 1038, State v. Punshon, 133 Mo. 44, 34 S.W. 25, State v. Miller, 156 Mo. 76, 56 S.W. 907, simply held that it was not error to excuse prospective jurors who stated they would not convict on circumstantial evidence. They did not involve propriety of voir dire questions and, as previously mentioned, the panel here was not asked if any member would refuse to infer negligence from circumstantial evidence. State v. Hoelscher, 217 Mo.App. 156, 273 S.W. 1098, and State v. Miller, Mo., 207 S.W. 797, simply held that it was error to refuse examination on whether jurors were members of the Ku Klux Klan or of a certain church, matters clearly involving possible prejudice in those cases. Similarly, the question in Shepard v. Harris, Mo., 329 S.W.2d 1, was not an attempt to pledge jurors to the award of an amount, but was a determination of the existence of 'any conscientious scruples about awarding that amount.' The propriety of the question in Moore v....