Faught v. St. Louis-San Francisco Ry. Co.

• Decision Date: 13 July 1959
• Docket Number: LOUIS-SAN,No. 2,No. 47120,47120,2
• Parties: Horace FAUGHT (Plaintiff), Respondent, v. ST.FRANCISCO RAILWAY CO., a Corporation (Defendant), Appellant
• Court: Missouri Supreme Court

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.

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.

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 mistrial.' Mr. Dalton: 'The Court takes the position it is not prejudicial?' The Court: 'I don't have to take the position--I take the position it is not sufficiently prejudicial to justify a mistrial.' In these circumstances it may not be said that the trial court abused its discretion or that it manifestly erred as to a matter materially affecting the merits of the action (V.A.M.S. Sec. 512.160, subd. 2), in overruling the motion for a new trial. Zein v. Pickel Stone Co., supra; Plater v. Kansas City, supra; Carter v. Rock Island Bus Lines, 345 Mo. 1170, 139 S.W.2d 458.

In March 1955, Mr. Faught was a member of a section gang consisting of himself, Arthur Wood, John Eskina and Elisha Marbut, track laborers, and Hardy Simmons, foreman. Mr. Simmons died just before the case was tried. Wood and Eskina were defense witnesses and in substance testified that they had no knowledge of Mr. Faught's having been injured while carrying a rail with them and they had no knowledge or recollection of any rail being laid on the Ozark branch in March 1955. By his own admission Marbut had told defense counsel just a few days before the trial that he had not seen Mr. Faught have an accident. Nevertheless, he appeared as a witness and corroborated Faught's testimony that he was injured while carrying a rail. In his answers to interrogatories Faught said that he did not remember the names and addresses of the men with whom he was working, that their names and addresses were in the railroad's account books. He did say, 'I remember the first names of some of the men but I never did know their addresses. Those I remember are Art. Marvin and John.' In his direct examination Mr. Faught testified that among the men working with him was Marbut and he said, 'Marbut was on my same side backing up.' On cross-examination he again stated that Marbut was working with him when he was injured and he said that he knew Marbut's name. Furthermore it developed that about a year before the trial he had gone with a lawyer, prior to the date of his answer to the interrogatory, to Marbut's home in Monett and had talked to him. When Marbut appeared as a witness defense counsel objected to his testifying because he was 'not listed' in the answer to interrogatories even though Faught had admitted on cross-examination that he knew his name. The court overruled defendant's objection to his testifying.

Of course, in view of Marbut's statement to defense counsel that he had not seen Faught have an accident, counsel may have been surprised and astonished at what he testified to as a witness but he could not have been surprised that his correct name was not given in his answer to the interrogatory because in October of the same year, 1957, the railroad in its answer to interrogatories listed Marbut as a member of Faught's section gang. On cross-examination Faught said, 'We always called him Marvin. I didn't know what his name was.' The defendant did not claim 'surprise'; it only contended, particularly in view of the essential purposes of discovery (State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383, 8 A.L.R.2d 1124) that Marbut should not be permitted to testify because his name was 'not listed' in the answer to interrogatories, and again, in these circumstances,...