Faught v. St. Louis-San Francisco Ry. Co., LOUIS-SAN

• Court: United States State Supreme Court of Missouri
• Writing for the Court: PER CURIAM
• Citation: 325 S.W.2d 776
• Decision Date: 13 July 1959
• Docket Number: LOUIS-SAN,No. 2,No. 47120
• Parties: Horace FAUGHT (Plaintiff), Respondent, v. ST.FRANCISCO RAILWAY CO., a Corporation (Defendant), Appellant

Page 776

325 S.W.2d 776 Horace FAUGHT (Plaintiff), Respondent,
v.
ST. LOUIS-SAN FRANCISCO RAILWAY CO., a Corporation
(Defendant), Appellant. No. 47120. Supreme Court of Missouri, Division No. 2. July 13, 1959.

Page 778

James L. Homire, W. W. Dalton, Laurance M. Hyde, Jr., St. Louis, for (defendant) appellant.

Hullverson, Richardson & Hullverson, St. Louis, for (plaintiff) respondent.

BARRETT, Commissioner.

The plaintiff, Faught, a retired track employee, brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., to recover damages for injuries allegedly sustained in 1955. While Mr. Faught claimed to have been injured in 1955, certainly in the first four months of that year, he continued working on the day of his injury and throughout that year and, except for brief intervals, until he was discharged as unable to work in November 1956. It was 'about a year' after he was supposed to have been accidentally injured that he received, other than home remedies, medical attention. The suit was filed in September 1957, and the claim is that he was injured near Galloway on the Ozark branch when the section crew of which he was a member was 'laying rails' near milepost 248 plus 10. The claimed circumstance was that he and three others were required to carry or 'snake' an 825 pound rail up a rough, rocky incline to the track and that while holding one handle of the rail tongs and walking backward he was caused to step into a grass-hidden ground hog hole thus throwing the weight of the heavy rail on him and injuring his back. The specific charges of negligence were failure to furnish sufficient help, ordering and directing four men to carry the heavy rail when the foreman knew that four men were inadequate for the task, and failure to use other available means of lifting and moving the rail. Upon the trial of the cause ten members of the jury found the issues in favor of the plaintiff and fixed his damages at $20,000. The railroad does not challenge the sufficiency of the evidence to support the finding of negligence in the respects submitted; it does contend, however, that its right to a fair trial was infringed in three material respects and that for those infringements it is entitled to a new trial at the hands of this court.

In empaneling the jury both plaintiff's counsel and defendant's counsel inquired of the panel whether any of them knew or had had any experience with named lawyers, investigators, detectives, and a certain claim agent. In his turn defense counsel said, 'Further, associated with Mr. Hullverson is Mr. Joe T. Meierotto, 530 East Madison Street, Springfield, Missouri.' Counsel then engaged in a colloquy and Mr. Hullverson said, 'you know he has no connection with me.' He said, 'Mr. Meierotto is a man for whom I tried a lawsuit many years ago. * * * Occasionally someone is recommended by him to my office.' Mr. Hullverson finally said, 'He has no interest whatsoever.' And defense counsel replied, 'I will withdraw it, but I have seen correspondence on it.' On cross-examination of Mr. Faught it developed that Mr. Meierotto had told him about Mr. Hullverson and had gone with him to Mr. Hullverson's office in St. Louis before his suit was filed. At the conclusion of the cross-examination defense counsel moved for a discharge of the jury on the ground that he had been deprived of the right to inquire of the panel concerning any acquaintance with Mr. Meierotto because, he said, it then developed that Mr. Meierotto had some 'connection' with the case. It was also developed that when Mr. Faught was to sign answers to interrogatories Mr. Hullverson sent the interrogatories to Mr. Meierotto and he obtained a notary public, called Mr. Faught at Nichols Junction, had him come to his home in Springfield to sign and be sworn to the interrogatories.

Page 779

Defendant claims in these circumstances that it was denied a fair trial, that Meierotto was 'interested' and 'active' in the case and that counsel was deprived of the right to properly examine and challenge the members of the panel. The parties argue whether in these circumstances Meierotto had an 'interest' in the case or was 'associated with' or 'connected with' counsel for plaintiff. The argument is rather beside the point, Mr. Hullverson had once successfully represented Mr. Meierotto (Meierotto v. Thompson, 356 Mo. 32, 201 S.W.2d 161), and he of course had a right to recommend clients and perform routine chores for counsel, perhaps. And in empaneling a jury counsel should not be permitted to inquire into extrinsic, collateral matters which could have no bearing on a juror's qualifications or his bias. But the problem here is not of the jurors' qualifications (V.A.M.S. Sec. 494.190 and compare 50 C.J.S. Juries Sec. 218(b), p. 956, and State v. Bounds, 216 Mo.App. 236, 262 S.W. 411), a party in examining and empaneling the jury is entitled to in good faith put such questions as will enable him to exclude persons who for any reason may not be fair or impartial. 50 C.J.S. Juries Sec. 275, p. 1039; 31 Am.Jur., Sec. 139, p. 121. And in some circumstances, to test the bias of a juror, a party may inquire into his relationship with 'persons interested in the action but not parties of record' even though the fact would not necessarily disqualify the juror. 50 C.J.S. Juries Sec. 275(b), p. 1043; 31 Am.Jur., Sec. 193, p. 167; Plater v. Kansas City, 334 Mo. 842, 68 S.W.2d 800.

But in this case, after the facts were fully developed, defense counsel moved for a mistrial (Gate City National Bank v. Bunton, 316 Mo. 1338, 296 S.W. 375), he did not ask to then examine the panel as to any knowledge or acquaintance with Mr. Meierotto (Zein v. Pickel Stone Co., Mo.App., 273 S.W. 165), and he did not offer to sustain the defendant's burded of stating or establishing facts from which bias on the part of any juror could have been inferred. 50 C.J.S. Juries Sec. 277, p. 1060; Murphy v. Graves, Mo., 294 S.W.2d 29. Mr. Meierotto lived in Springfield, the case was tried in St. Louis, Mr. Meierotto did not testify as a witness and other than as noted his name was not mentioned throughout the trial. The entire matter was probably best summed up by the court in its denial of the motion to discharge the jury: 'The Court is of the opinion that the situation is not sufficiently prejudicial to justify the declaration of a mistrial. Mr. Meierotto lives in Springfield. The question was withdrawn by counsel and the fact that it is true that the testimony indicates that Mr. Meierotto had some connection with the matter, does not seem to the Court to indicate that he is interested to the extent that it not being inquired about would justify a...