Golden v. Chipman

• Decision Date: 24 February 1976
• Docket Number: No. 36701,36701
• Citation: 536 S.W.2d 761
• Parties: Walter GOLDEN et al., Appellants, v. Guy Eugene CHIPMAN, Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 761

536 S.W.2d 761

Walter GOLDEN et al., Appellants, v. Guy Eugene CHIPMAN, Respondent.

No. 36701.

Missouri Court of Appeals, St. Louis District, Division Two.

Feb. 24, 1976.

Motion for Rehearing or Transfer Denied April 13, 1976.

Application to Transfer Denied June 14, 1976.

Patrick J. Eng, Columbia, for appellants.

Lewis J. Leonatti, Edwards, Seigfreid, Runge & Hodge, Inc., Mexico, for respondent.

CLEMENS, Presiding Judge.

The sole issue on this appeal: Did the trial court err in denying plaintiffs' challenge for cause as to venireman Vernon Duffy on the ground Duffy's son, a law student, was employed as a law clerk by defense counsel? Astute counsel have presented cogent oral agruments and written briefs, each strongly supporting their adverse contentions.

The action is for wrongful death of plaintiffs' wife and mother. By a nine to three verdict the jury found for defendant. Venireman Duffy, whom plaintiff had not peremptorily challenged, was the jury foreman.

We relate the pertinent trial court proceedings. In pre-trial conference the court took up several preliminary matters. Plaintiffs' counsel told the court: 'We might raise this problem right now in order to save needless interrogation. One of the jurors, Vernon Duffy, whose son is an employee of Jerry's, I think certainly he is subject to challenge for cause.' The court responded: 'Well, the mere relationship, I do not think would be sufficient grounds for challenge for cause and if that is what is being done . . .' Voir dire followed; the inquiry re venireman Duffy:

'Q. MR. SIMON: (Plaintiffs' counsel) Mr. Duffy, I would like to ask you, sir, a personal question if I might. Is your son a law student?

A: Yes, he is.

Q: And has he been employed by the firm of Edwards, Seigfreid, Runge & Hodge?

A: Yes.

Q: Is he still employed by the firm at this time?

A: Yes.

Q: Does he live at home or in Columbia?

A: He lives in Columbia.

Q: Let me ask you this: Do you feel that the fact that your son is an employee of that law firm would in any respects influence your decision in this case?

A: Not at all.

Q: Do you feel it would embarrass you to have to bring back a decision against the firm's client if you feel that the evidence and the law as given to you by Judge Adams called for such a conclusion?

A: Not at all.

Q: Do you feel it would make--in any respect at all make it more difficult for you to decide this case solely on the evidence?

A: No, sir.

Q: You don't feel that it would affect you at all, is that correct?

A: I don't even know the nature of his work there, so it would not.

Q: Are you and your son close?

A: I don't--

Q: Do you see him frequently?

A: Oh, yes. Yes.

Q: And you have not discussed this particular case with him?

A: Not at all, no.'

The critical motion and the court's ruling:

'MR. VAN MATRE: (Plaintiffs' counsel) Notwithstanding the answers that Juror Vernon Duffy made, we renew our challenge for cause because we don't think it is morally possible for the father of a man employed by the defendant's attorneys' office to act as a fair and impartial juror and we renew our challenge for cause.

THE COURT: Do you have any comment on that?

MR. SEIGFREID: (Defense counsel) I object to it, Your Honor.

THE COURT: The challenge would be denied.'

We note parenthetically that plaintiffs did not pursue their unsuccessful challenge to venireman Duffy by peremptorily challenging him. Plaintiffs contend, and defendant does not deny, that plaintiffs did not thereby waive their challenge for cause. We agree, since a litigant is entitled to a full panel of qualified jurors before making peremptory challenges. State v. Lovell, 506 S.W.2d 441 (Mo.1974).

Plaintiffs' sole point on appeal is that the trial court erred in denying their challenge to venireman Duffy for cause 'because of his family relationship with defendant's attorneys of record,' that is, because Mr. Duffy's son was an employee of defense counsel.

Opposing counsel acknowledge their inability, as we do, to find a Missouri decision on all fours with or closely similar to the problem here. Missouri decisions have ruled many cases concerning challenging jurors for cause, under a multitude of varying circumstances. ¹ We will explore these to determine underlying principles, weigh them, and then apply these principles to the present case.

Several categories of challenge-forcause cases are not pertinent. Ours is not a case where a venireman acknowledged his inability to serve impartially. See Theobald v. St. Louis Transit Co., 191 Mo. 395, 90 S.W. 354(1--4) (1905). To the contrary, venireman Duffy professed impartiality, although his conclusory statements were neither binding on the trial court nor controlling here. Moore v. Midwest Freightways, 266 S.W.2d 578(8--12) (Mo.1954). Other dissimilar juror qualification cases concern veniremen who have concealed pertinent information. Maddox v. Vieth, 368 S.W.2d 725(3--4) (Mo.App.1963). Here, the good faith of venireman Duffy's answers is unchallenged.

Another broad category of veniremen subject to challenge for cause is based on the personal relationship, close or remote, between a venireman and the litigant upon whose rights he would pass. By § 495.150, RSMo 1969, veniremen are disqualified for cause if they are then clients of a party's attorney. Learned v. Godfrey, 461 S.W.2d 5 (Mo.1970). In contrast, a venireman's past employment of a litigant's attorney does not require disqualification for cause. Blackburn-Ens., Inc. v. Reberts, 379 S.W.2d 630(7) (Mo.App.1964).

Excluding from our consideration the above types of cases where disqualification of a venireman is mandatory, we delve into consideration of general principles and their application to cases where disqualifying a venireman, as here, is discretionary with the trial court and the ultimate appellate decision depends on whether the trial court abused that discretion.

Plaintiffs argue their right to twelve impartial jurors. Defendant agrees, but contends impartiality is to be determined by the trial court. We are not faced with a novel question of law but with the application of longstanding principles to a precise factual situation. State v. Land, 478 S.W.2d 290 (Mo.1972).

The basic principle of jurors' impartiality is tersely stated in the oft-quoted case of Theobald, supra: 'Under our system of jurisprudence there is no feature of a trial more important and more necessary to the pure and just administration of the law than that every litigant shall be accorded a fair trial before a jury of his countrymen, who enter upon the trial totally disinterested and wholly unprejudiced.' Plaintiffs have briefed several cases applying that basic principle. Each one also expresses defendant's contention that a venireman's impartiality is to be determined by the trial court.

In the early case of Glasgow v. Metropolitan St. Ry. Co., 191 Mo. 347, 89 S.W. 915(1) (1905), a venireman worked for a corporation allied with the defendant and upon his request the trial court excused him, over defendant's objections. In upholding the trial court's ruling, the court said: '. . . the authority of the court in such a case is not limited to a decision of the strict legal question of the qualifications of a juror. It has a discretion to be exercised in the administration of justice in which it may excuse a juror, who although not legally disqualified, yet whose sitting is reasonably liable to fill either party with an apprehension of unfairness. A court in the exercise of that discretion will not attempt to allay an unreasonable suspicion, but when it can remove a cause of reasonable apprehension on the one side without injuring in any degree the rights of the other or giving the other cause for a similar reasonable apprehension, it is the right and duty of the court to do so, and when in that respect the court exercises a sound judicial discretion its ruling will not be disturbed.' We note the court declared a limitation on that principle: 'The trial court stands closer to the source of justice than any other tribunal; upon the trial judge the heaviest responsibility rests, because much of the administration of justice depends on the wise exercise of a discretion that the law has imposed in him alone. We are satisfied that the court exercised its discretion wisely in excusing this juror.'

Plaintiffs also rely on Moss v. Mindlin's, Inc., 301 S.W.2d 761(9--11) (Mo.1957). In that case two veniremen had suffered injuries akin to plaintiff's but the trial court denied defendant's challenges. In upholding this the Supreme Court ruled: 'We recognize that, as stressed by instant defendant, a venireman is not the judge of his own qualifications and that the trial court in the exercise of its discretion should resolve a substantial doubt as to the venireman's qualifications against the prespective juror.' The court then explained the word 'substantial,' saying: 'However, it is equally true that, on review by an appellate court, unless there is some fact which, we reasonably can say, in and of itself, necessarily showed prejudice, or unless there is an admission of prejudice, past or present, or unless there is something in the demeanor of the venireman which, despite his actual words, discloses the existence of prejudice in fact, we should not convict the trial court of an abuse of discretion in overruling a challenge for cause.'

Plaintiffs' contention, and its limitation, is summarized and explained in our case of Leavitt v. St. Louis Public Service Company, 340 S.W.2d 131(5--7) (Mo.App.1960). There, two veniremen professed impartiality despite injuries in previous motor vehicle collisions. The trial court denied defendant's challenges for cause. Writing for this court Judge Doerner wrote in affirming: 'The exercise by a trial court of its discretion in that regard (sustaining a challenge for cause) should be encouraged. For with '* * * the world absolutely filled with competent, unbiased, and unprejudiced...