Harrison v. St. Louis Public Service Co.

• Decision Date: 16 September 1952
• Docket Number: No. 28375,28375
• Citation: 251 S.W.2d 348
• Parties: HARRISON v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 348

251 S.W.2d 348

HARRISON v. ST. LOUIS PUBLIC SERVICE CO.

No. 28375.

St. Louis Court of Appeals, Missouri.

Sept. 16, 1952.

Rehearing Denied Oct. 17, 1952.

Mattingly, Boas & Richards and Lloyd E. Boas, St. Louis, for appellant.

Hullverson & Richardson, St. Louis, for respondent.

BENNICK, Presiding Judge.

This is an action for damages for personal injuries sustained by plaintiff, Elizabeth D. Harrison, while a passenger on a westbound Lindell bus owned and operated by defendant, St. Louis Public Service Company.

Upon a trial to a jury in the Circuit Court of the City of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $5,450. Judgment was rendered in accordance with the verdict; and after an unavailing motion for a new trial, defendant gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.

The case was pleaded and submitted upon the theory of res ipsa loquitur predicated upon the charge that while plaintiff was standing in the aisle, the bus was caused to give a sudden, violent, and unusual jerk whereby she was thrown to the floor and injured.

Plaintiff was apparently about seventy-two years of age at the time of the accident, which occurred on July 3, 1948. She received her injury as the bus was crossing Taylor Avenue at its intersection with Lindell Boulevard. She had boarded the bus at 4400 Lindell, and had ridden but a single block when the accident took place. The bus was crowded, and she was standing about midway of the bus, facing to the south, and holding on to a horizontal rod running lengthwise of the bus above her. All that she knew was that there was a sudden jerk of the bus which broke her grip on the rod to which she was holding and caused her to fall to the floor of the bus. She herself described the jerk as a 'big jerk', while a fellow passenger referred to it as 'unusually long and hard'.

The driver was called as a witness for defendant, and his explanation of the occurrence was that as he prepared to stop at the regular stopping point west of Taylor Avenue in response to a signal from a passenger, he glanced in his rear-view mirror and saw plaintiff backing towards him on her heels as though she had in some way lost her balance. At that time, according to his testimony, he had 'just touched the brake to slow the bus down'; and as he observed plaintiff's predicament from which he concluded that he was powerless to extricate her, he 'eased the stop', or, in other words, permitted the bus to roll to a stop so as to avoid any aggravation of the force of her impending fall.

For its first point defendant charges error in the action of the court in refusing to grant it a new trial upon the ground that one of the jurors, Pick by name, had neglected and refused to disclose a prior claim against defendant when interrogated about prior claims on voir dire examination.

The record shows that in this case the voir dire examination of the prospective jurors was quite extensive. Plaintiff's counsel first inquired into their qualifications at considerable length, and at the conclusion of his examination the same course was pursued by defendant's counsel.

The basis for the insistence upon juror Pick's disqualification came near the beginning of the interrogation of the panel by defendant's counsel, when counsel inquired whether any member of the family of any of the panel had ever had a claim against defendant or any of its predecessors. Two of the panel answered in the affirmative and identified the claims by members of their respective families. However all the others, including Pick, gave no response, which was of course to be taken as an answer in the negative.

In its motion for a new trial, after the return of a unanimous verdict against it, defendant set up as one of its grounds for a new trial that juror Pick had failed to advise its counsel on voir dire examination that his wife had previously made a claim against it for personal injuries sustained as the result of an accident occurring on September 1, 1949, which was a year and seven months before the trial. Defendant further alleged that the information concerning such claim had not come to its attention until the very day that the motion for a new trial was filed.

Confronted with the motion, plaintiff obtained and filed the affidavit of juror Pick in which Pick stated, in substance, that his wife had indeed sustained a minor bruise on the occasion in question while a passenger on one of defendant's buses; that at no time had either he or his wife contacted defendant or made a claim against it, but that subsequently one of defendant's adjusters had called at their home and had voluntarily paid the sum of $50 to close the file; that he had dismissed the incident from his mind by the time he was summoned for jury duty a year and seven months later, and had not recalled it until he was informed of the reference to it in the motion for a new trial; and that such incident had not in any way influenced him in arriving at his decision in the case.

No one would question the fact that the parties to a lawsuit are privileged to have it heard and determined by a fair, unbiased, and impartial jury. O'Brien v Vandalia Bus Lines, 351 Mo. 500, 173 S.W.2d 76; Harding v. Fidelity & Casualty Co., Mo.App., 27 S.W.2d 778. Nor, if an objectionable juror is permitted to sit in the case, does it render the situation harmless that a unanimous verdict may be returned. Even though as few as nine jurors are permitted to bring in a verdict in a civil action, the parties are none the less entitled to have the decision based upon the deliberation of twelve qualified members. Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 127 A.L.R. 711; Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459.

In a case such as this, where a juror has failed to disclose some fact on voir dire examination which might reasonably have affected his qualification to sit as a juror in the case, the question of what consequence shall follow resolves itself into one of whether he was guilty of an intentional concealment of the matter concerning which he was being subjected to interrogation. If the conclusion be reached that his failure to answer amounted to deception, and that the losing party was thereby denied the fair trial to which it was entitled, the only effective remedy would be to set aside the verdict and award a new trial. Piehler v. Kansas City Public Service Co., supra. However an unintentional failure to disclose information not directly connected with the case does not necessarily show prejudice on the part of the juror so as to call for the trial of the case anew. Davis v. Kansas City Public Service Co., 361 Mo. 61, 233 S.W.2d 679; O'Brien v. Vandalia Bus Lines, supra. In the final analysis, therefore, the question of what the result shall be must be left primarily to the discretion of the trial court, reviewable only for abuse, and with the court's decision to conclude the matter unless an abuse of discretion unmistakably appears. Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795.

In the present instance, all that defendant had to stand on was the fact that when the prospective jurors were asked whether any member of their respective families had ever had a claim against defendant, juror Pick gave no response, although the truth was that one year and seven months previously his wife had accepted a settlement of $50 which was tendered her by a representative of defendant. However defendant did not attempt to refute Pick's explanation, which was that the injury had been trifling; that neither he nor his wife had made a claim; that the settlement had been the voluntary act of defendant; that his failure to disclose such incident had been unintentional and wholly due to lapse of memory; and that the matter had in no way influenced his decision in concurring in the verdict which was returned. Except for his mere lack of response to counsel's question, there is no pretense of any basis from which bias or prejudice might be inferred; and in this respect the situation is far different from that which obtained in Piehler v. Kansas City Public Service Co., supra, the case upon which defendant relies. We appreciate that Pick was not to be the judge of his own qualification, but the question reaches us, not upon his own conclusion, but upon the court's conclusion that he was free from animosity or ill-will towards defendant. The court's discretion appears to have been soundly exercised, and there is no occasion for us to interfere with its action in refusing a new trial upon the particular ground. Davis v. Kansas City Public Service Co., supra; O'Brien v. Vandalia Bus Lines, supra.

We have already pointed out that in submitting the case, the court charged the jury at plaintiff's request that if they found that on the occasion in question, while plaintiff was standing in the aisle, the bus was caused to give a sudden, violent, and unusual jerk whereby she was thrown to the floor and injured, such facts were sufficient circumstantial evidence to warrant a finding that defendant had been negligent, and the jury were entitled to so find unless they found from other facts and circumstances in evidence that the occurrence had not been due to defendant's negligence.

Following this the court gave...