Johnson v. Missouri-Kansas-Texas R. Co., MISSOURI-KANSAS-TEXAS

• Decision Date: 09 December 1963
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 2,No. 49862,49862,2
• Citation: 374 S.W.2d 1
• Parties: Raymond H. JOHNSON, Respondent, v.RAILROAD COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 1

374 S.W.2d 1

Raymond H. JOHNSON, Respondent, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.

No. 49862.

Supreme Court of Missouri, Division No. 2.

Dec. 9, 1963.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 13, 1964.

Frank J. Rogers, Kansas City, Lynn M. Ewing, Jr., Nevada, Mo., for appellant.

Everett Teel, Nevada, Mo., Sylvan Bruner, Pittsburg, Kan., Arthur C. Popham, Kansas City, for respondent. Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

BARRETT, Commissioner.

This is the third trial and appeal of an action under the Federal Employers' Liability Act and it is not necessary therefore to again detail the circumstances as the jury could and did find them. The testimony was substantially the same in all three trials and of necessity the railroad concedes, as the court held upon the first appeal, that in at least two particulars its liability was a jury question. Johnson v. Missouri-K.-T. R. Co., (Mo.) 334 S.W.2d 41; Johnson v. Missouri-K.-T. R. Co., (Mo.) 355 S.W.2d 32. It is sufficient here to say that the plaintiff Johnson was a member of a three-man maintenance crew consisting of himself, his fellow laborer Smeithers and his foreman Hamilton and that he claims to have been negligently injured near Kimball, Kansas, on October 17, 1957, while he and Smeithers at the direction of Hamilton were carrying a main line tie and attempting to load it on a motorcar. Upon this appeal the railroad contends that because of two prejudicially erroneous instructions and the court's failure to sustain its challenge for cause of juror Wade it is entitled to a third new trial and, failing in that regard, urges in any event that the verdict is excessive.

Mr. Teel of Nevada, Missouri, was associated as local counsel with plaintiff's Kansas City and Pittsburg, Kansas, counsel. In qualifying the jury it developed that 17 or 18 years ago Mr. Teel had represented Mrs. Wade and presently was engaged in handling her mother's estate in which she was interested as a beneficiary. She said, however, in response to defense counsel's inquiry that the fact of such representation would not cause her 'to be influenced in favor of his side of the case.' Subsequently the court inquired of Mrs. Wade whether the fact of Mr. Teel's representing her 'and the other heirs' would 'make any difference to you in deciding this case in accordance with the law and the evidence and to bring in a fair and impartial verdict, if you were chosen?' She responded, 'I see no reason why it should.' Whereupon the court refused to sustain defense counsel's challenge for cause. Mrs. Wade was stricken from the panel by defendant and eleven jurors returned a plaintiff's verdict of $70,000.

It is now said that Mrs. Wade's response to the court's question was 'evasive,' and that by reason of her relationship with Mr. Teel she was not qualified to sit as a juror and should have been excused 'for cause.' In counties of 60,000 to 200,000 population the relationship of attorney and client within six months confers upon the opposing party 'the right to challenge such juror for cause.' V.A.M.S Sec. 495.150. There is no such statutory disqualification applicable to Vernon County jurors (V.A.M.S. Sec. 494.190) but the appellant urges, nevertheless, that the disqualification should apply and that the court prejudicially erred in refusing to sustain its challenge of Mrs. Wade. It is not necessary to pursue this subject at length, the enumerated statutory disqualifications are not preclusive (Murphy v. Cole, 338 Mo. 13, 88 S.W.2d 1023, 103 A.L.R. 505) and there would have been no abuse of discretion in the court's sustaining the challenge. Hicks v. Simonsen, 307 Mo. 307, 270 S.W. 318; Privitt v. St. Louis-San Francisco Ry. Co., (Mo.) 300 S.W. 726. There are commanding instances, as the employer-employee relationship in Murphy v. Cole, but there is a discretion in the trial court and that court's judgment will not be set aside unless there has been a manifest invasion of a fair trial. Strahl v. Turner, (Mo.) 310 S.W.2d 833, 69 A.L.R.2d 646; Moss v. Mindlin's, Inc., (Mo.) 301 S.W.2d 761. Here there was full disclosure and in the absence of a specifically applicable statute 'a juror is not absolutely disqualified because he is presently the client of an attorney for one of the parties.' Annotation 72 A.L.R.2d 673, 682, 'Professional or business relations between proposed juror and attorney as ground for challenge for cause.' And see 31 Am.Jur. (Jury) Sec. 205, p. 173; 50 C.J.S. Juries Sec. 221b, p. 961; Pioneer Construction Co. v. Schmidt, (Mo.) 192 S.W.2d 859. In short, in the circumstances of this particular record manifest abuse of discretion is not plainly apparent or demonstrated.

In the second trial Johnson submitted the railroad's liability in a single-sentence instruction of over 800 words. Because the instruction was argumentative, too complicated and misleading the judgment was reversed. (355 S.W.2d 32). In this the third trial the railroad's liability was submitted in two separate instructions. Instruction 1 submitted the hypothesis that the foreman directed Johnson and Smeithers to load two main line ties 'of the weight of about 200 pounds' and that in carrying ties the distance involved here 'there was then a long standing general custom of defendant that three sectionmen,' including the foreman if sectionmen were not available, 'were usually and generally provided and used to carry and handle same,' that it was not safe for two employees and 'that defendant failed to use ordinary care to furnish reasonably sufficient help in said task,' that the foreman knew of the custom and hazard and that while Johnson was thus helping to carry a tie (the second one) his body was suddenly and violently twisted and he was injured.

The appellant makes four specifications of error against this instruction. Space does not permit of a detailed recitation and analysis of the arguments, basically the appellant's rather ingenious technique is to analyze the plaintiff's pleadings, set forth in detail the proof and then assert that the instruction was prejudicially erroneous in not including all these numerous elements. As indicated it is not necessary to consider each of these claims in detail, they have all been considered and it is sufficient to dispose of this phase of the appeal to demonstrate by a single illustration the appellant's basic contention. The appellant first states what it says was 'the real point in issue,' the details of the manner in which Johnson and Smeithers picked up and were carrying the tie are set forth and it is said that each of these items of proof was not hypothesized or submitted as the proximate cause of plaintiff's injury. It is asserted that plaintiff's evidence established the weight of the tie to be 300 pounds, that the instruction omitted this fact and failed to require a finding 'that plaintiff was in a strain from carrying the tie' and authorized a verdict upon a finding of a 200 pound tie. In this and other respects it is urged that the instruction erroneously authorizes 'a verdict on a general finding of negligence and injury to plaintiff' rather than upon plaintiff's specifically alleged and established circumstances.

As the appellant points out, there have been instances in which verdict-directing instructions were manifestly erroneous in their failure to hypothesize and submit both factually and in theory the precise circumstances relied on 'the existence or nonexistence (of which) was a sharply contested issue.' Brainard v. Missouri Pacific Railroad Co., 319 Mo. 890, 898, 5 S.W.2d 15, 18; Lairson v. Kansas City Rys. Co., (Mo.App.) 232 S.W. 484. But as indicated it is not necessary to a disposition of this appeal to examine in detail each of the complaints and demonstrate that singly or in their totality they are not well taken. The plaintiff was not conclusively bound by either his pleading or proof to a tie weighing 300 pounds. The allegation was helping carry a tie of 'approximately 200 pounds or more,' and even though Johnson once said, '(j)ust glancing at it there,' it weighed 'around 300 pounds,' he and others repeatedly said 'approximately two hundred pounds.' The defendant claimed that there was no such 'occurrence' as Johnson described, in short the railroad's contention was that he was not injured either accidentally or negligently on the occasion or in the manner claimed by the plaintiff and his witnesses and that was the crucial issue in this case and throughout all three trials. But as to the basic theory of recovery and in answer to the appellant's objection to instruction 1 it is only necessary to note the following from the opinion in the first appeal: It was held in the first place, in so far as instruction 1 is concerned, that 'the evidence was sufficient to warrant a submission of negligence in doing this work with an insufficient number of workmen. * * * As noted, plaintiff had evidence that it was the usual custom and practice to use three men to carry and load main line ties for such distance as was required in this case. Plain...