Grant v. Meinholtz

• Decision Date: 07 December 1926
• Docket Number: No. 19100.,19100.
• Parties: GRANT v. MEINHOLTZ.
• Court: Missouri Court of Appeals

289 S.W. 22

GRANT v. MEINHOLTZ.

No. 19100.

St. Louis Court of Appeals. Missouri.

December 7, 1926.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by David Grant against Fred W. Meinholtz. Judgment for defendant, and plaintiff appeals. Affirmed.

Earl M. Pirkey, of St. Louis, for appellant. W. E. Moser and John S. Marsalek, both of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries. The trial before the court and jury resulted in a verdict for defendant, and, after appropriate motions, plaintiff has perfected this appeal.

The pleadings are not in controversy. The petition alleges the relationship of master and servant, and that defendant, as employer, failed to exercise ordinary care to provide plaintiff with a reasonably safe scaffold upon which to do his work. The answer is a general denial.

The evidence on the merits of the case likewise is not here for review. Briefly, however, plaintiff's evidence is to the effect that plaintiff was a hod carrier employed by defendant, a contractor, and that defendant furnished plaintiff a scaffold upon which to work; that the scaffold contained a loosened board, which was insecure, and which tipped and gave way while plaintiff was pushing a wheelbarrow loaded with mortar over same; that because of such unsafe condition he fell off the scaffold, and suffered injuries. Defendant's evidence is that plaintiff was injured as the result of his attempting to turn the wheelbarrow at a place where the scaffold was too narrow for that purpose, and that he fell off of the edge of same, and was thereby injured.

The assignments of error addressed to us are: First, that the court erred in its ruling on objections during the voir dire examination of jurors; second, that error was committed in allowing juror Louis J. Stutz to serve over the objection of plaintiff, and, third, that error was committed in allowing defendant to testify that he was a married man.

The first and second assignments of error may be discussed together. The controversy arises out of this situation: During the voir dire examination of the jury, plaintiff's counsel asked the jurors collectively if there was any one on the jury who was in the service of a company that had ever been sued for damages, and juror Stutz, it seems, made no reply. Later on, during the examination, when plaintiff's counsel directed the specific question to this juror, Stutz answered that he was a collector for the Terminal Railroad Association of St. Louis, and that such company had been sued for damages. Then counsel for plaintiff made the following objection to the court:

"I object to juror No. 17, Mr. Louis J. Stutz, for the reason that he was drawn as a juror for No. 3, assigned to division No. 3, served in division No. 3 according to his answer, and there is no authority under the law to transfer him to division No. 13; for the further reason that under the rule made by the judges only divisions Nos. 5 and 3 can interchange, and divisions 13 and 3 cannot interchange."

On this objection the court explained that there was no set rule for exchanging jurors between the divisions of the court, but that the judges had voted to exchange jurors when it was necessary and expedient, stating further that, while there was no definite rule actually adopted by the judges on the subject, there certainly was no rule which forbade it. The court further announced that he knew the juror had been taken from division No. 3—this case being tried in division No. 13—and overruled the objection. Then counsel for plaintiff made the further objection to the juror, stating his objection thus:

"I have the further objection to Mr. Stutz that I asked the whole jury if there was any gentleman on the jury in the service of any company that had ever been sued for damages. He didn't answer at all, and then I asked him direct, and found out that he had been. That was done right here in the courtroom. A man that gives an untruthful answer like that ought not to sit on the jury, and asked that he be excused for that reason."

The objection was again overruled.

Plaintiff's counsel then announced to the court that there were other jurors who had been taken from division No. 3 where they had been summoned to appear, who had been transferred to the panel in this case in division No. 13, naming jurors Charles S. Perkins, Louis J. Stutz, and Edward A. Teckemeir. The court again announced that it was aware that the jurors had been summoned in division No. 3, but that the court (division No. 13) had "borrowed these jurors from division No. 13," and overruled plaintiff's objection to these jurors serving on the panel. Better stated, the court denied these challenges for cause.

On the question as to whether the court erred in using jurors who had been originally summoned in division No. 13, and who had been called by the court through the deputy sheriff from division No. 3 to serve in division No. 13, we find that this point is not preserved in the motion for new trial. The motion for new trial complains of the court's failure to sustain the challenge to juror Adolph L. Kurtz; that juror Adolph L. Kurtz had been wrongfully brought from division No. 3 to division No. 13; and that Adolph L. Kurtz had failed to answer counsel's general question regarding the employment of any juror by any company that had been sued for damages.

Likewise it will be seen that the last-mentioned ground for new trial is directed against the conduct of Adolph L. Kurtz for failure to answer the inquiry about employment in a company sued for damages, and not Louis J. Stutz, nor Charles S. Perkins, nor Edward A. Teckemeir. Of course, it is hardly necessary to say that such assignments of error cannot be urged upon appeal when no such matter is included in the motion for new trial, and for that reason alone we would be justified in overruling these two assignments of error.

Learned counsel for respondent insists, however, that there was no proof made that these jurors had actually been transferred from one courtroom to another. We doubt whether such was necessary. The clear inference from the language of the court is that the court ordered the deputy sheriff to get sufficient jurors to complete the panel from division No. 13.

However, addressing ourselves to the very vitals of the controversy, in order to clarify this case and like cases that may be headed this way, we have read section 2626, Revised...