Kennedy v. Tallent

CourtCourt of Appeal of Missouri (US)
Citation492 S.W.2d 33
Docket NumberNos. 34566,34581,s. 34566
PartiesTom KENNEDY and Violet Kennedy, his wife, Respondents, and Kay Kennedy, a minor, b/n/f Tom Kennedy, Respondent-Appellant, v. James TALLENT, Appellant-Respondent. . Louis District, Division One
Decision Date20 February 1973

Roberts & Roberts, Kenneth Rohrer, Farmington, for respondents-appellants.

Buerkle, Buerkle & Lowes, Jackson, for appellant-respondent.

PER CURIAM:

This appeal involves a collision between an automobile owned by plaintiffs Tom Kennedy and Violet Kennedy, his wife, which was being driven by Violet, and a car owned and operated by defendant James Tallent. Kay, the plaintiffs' five year old daughter, was a passenger in her mother's vehicle. The petition filed by the multiple plaintiffs was in three counts. In Count I Violet sought $10,000 for her personal injuries. In Count II Kay, by her next friend, her father, likewise prayed for $10,000 for her personal injuries. In Count III Tom and Violet jointly asked for $2500 for the damage to their car, $1,000 for the loss of their business operations, and $3,000 for medical treatment of Kay; and in the same Count Tom demanded $5,000 for the cost of Violet's medical expenses and his loss of consortium. In his answer defendant denied that he had been negligent and affirmatively pleaded contributory negligence on the part of Violet. Primary negligence on the part of the defendant was submitted by the plaintiffs, and the issue of Violet's contributory negligence was submitted by defendant. The jury returned the following separate verdicts: for $2,000 in favor of Violet for her personal injuries; for $500 in favor of Tom as the result of Violet's injuries; for $2,000 in favor of Tom and Violet for their property damages; for $500 in favor of Tom as the result of the injuries to Kay; and in favor of Kay on the issues, but assessed her damages for her personal injuries at '$ None.' Judgment was entered, defendant's alternative motion was overruled, and this appeal by defendant followed. A motion on behalf of Kay for a new trial was likewise overruled an appeal taken, and the two appeals were consolidated here.

Since defendant makes no claim that a submissible case was not made or that Violet had been guilty of contributory negligence as a matter of law, an extended statement of the facts is unnecessary. It is sufficient to say that the collision occurred on July 25, 1970, about 10:00 A.M., at a point approximately one mile west of Highway KK on Route T, in Madison County, Missouri. The weather was clear and the pavement dry. Violet's eastbound automobile struck the defendant's westbound car as defendant was in the course of making a left turn to enter a driveway located on the south side of the highway.

Defendant's points on appeal extend from a complaint regarding the competency of a juror to his claim that the verdicts were the result of bias and prejudice on the part of the jury. The gist of the first to be considered is that the trial court erred in not granting defendant a new trial because the foreman of the jury, Noah J. Young, was guilty of intentionally concealing the fact that he was related to Violet by blood within the fourth degree of consanguinity. The matter was brought to the attention of the court in a supplemental motion for a new trial in the form of an affidavit by defendant's counsel, the essential part of which we quote in full:

'Albert C. Lowes, being first duly sworn upon his oath, states:

'1. He is one of the attorneys of record for the defendant and he makes this affidavit for and on behalf of the defendant.

'2. After placing the early motion for new trial in the mail late in the p.m. of 12--15--71, he received information on the night of 12--15--71 that the foreman of the jury, Noah J. Young, and Violet Kennedy were related well within the fourth degree of relationship by blood or marriage.

'3. He immediately conducted an investigation and found that the foreman of the jury, Noah J. Young, and all plaintiffs are related as suggested in that Noah J. Young's mother was an aunt of Gus King, who is the father of plaintiff, Violet Kennedy.

'4. That had said juror related this information at time of voir dire when the questions were asked relative to relationship, defendant's counsel would have asked that said juror be excused for cause pursuant to Section 494.190 RSMo 1969 (V.A.M.S.).

'Further affiant saith not.

/s/ Albert C. Lowes

Albert C. Lowes'

While defendant's counsel in his affidavit refers to '* * * the questions (which) were asked relative to relationship * * *,' a careful review of the transcript reveals that neither counsel even interrogated the panel in general, or juror Young in particular, regarding the matter of relationship to any party. However, while no direct question was asked, the matter of a juror's incompetency to serve because of his relationship was brought to the attention of the panel in that plaintiffs' counsel asked the panel whether any member considered himself a close friend or business associate of the defendant; juror Whitener indicated that he did, and when interrogated further stated that he was a third cousin of the defendant's wife. The court then commented: 'Third cousin. That alone would excuse you, Mr. Whitener, relationship within the fourth degree is sufficient. You may stand aside, Sir. * * *' In brief, from this and other incidents which occurred during the voir dire examination we have no hesitation in concluding that the incompetency of a juror to serve because of his relationship by blood or marriage to a party was brought to the attention of juror Young.

If, when asked, or the circumstances indicate he should volunteer the information, a juror discloses that he is related to a party by blood or marriage within the fourth degree of consanguinity he is incompetent to serve as a juror and should be excused. Section 494.190. And if he was aware of such relationship but concealed it a trial court which overruled a motion for a new trial when the relationship and the concealment were established would clearly commit error. But if a juror is unaware of his disqualifying relationship to a party at the time he is questioned he obviously is not concealing the fact of his relationship because he had no knowledge that he was so related to the party. Thus in the final analysis it is not merely the relationship of the juror which disqualifies the juror, but the relationship and his knowledge of it. And in order to obtain a new trial because of the incompetency of one who served as a juror the moving party must show more than the relationship; he must establish that at the time the juror was selected to serve he knew of his relationship and concealed or failed to reveal his knowledge of his disqualifying relationship. Those principles have been established in three comparable decisions of our Supreme Court. In State v. Chandler, Mo., 314 S.W.2d 897, 900, the court said:

'First, the record does not show that either the defendant or the juror was aware of the relationship until after the trial was concluded. In a proper case on timely objection a juror within the prohibited relationship should be excluded on the ground of presumptive prejudice which is the basis of the prohibitory statute. However, where the juror was not aware of such relationship during the trial of the case it is not error to refuse a new trial because it is the juror's knowledge of the fact of the relationship that may be expected to and does make such juror biased or prejudiced. State v. Stewart, 296 Mo. 12, 246 S.W. 936, 939(3); State v. Miller, 331 Mo. 675, 56 S.W.2d 92, 95(6). The defendant alleges in his motion that the relationship 'was not known to the defendant until after the trial but was well known to the juror.' The only reference in the record to this subject matter is by the prosecuting attorney during his voir dire examination when he asked the veniremen the general question 'Are any of you related by blood or marriage to Marvin Chandler, the defendant in this case?' to which question there was no response. The affidavit filed in proof of the relationship makes no reference to the juror's knowledge or lack of it. The unverified statement in the motion for new trial does not tend to prove the assertion. State v. Brewer, Mo., 286 S.W.2d 782, 784(6). The charge that the juror knew of the relationship is not borne out by the record.'

And to the same effect see State v. Stewart, 296 Mo. 12, 246 S.W. 936 and State v. Miller, 331 Mo. 675, 56 S.W.2d 92.

In the instant case there is nothing in the record before us to indicate in any way that if Young was, in fact, a second cousin by blood of Violet that he was aware of that relationship at the time of the voir dire examination or before defendant's counsel filed his affidavit. In the affidavit, heretofore quoted, no claim is made that Young was aware of the relationship, and at the time defendant's motion for a new trial was heard and submitted defendant did not call any witness or produce any evidence of any kind, much less evidence that at the time of the voir dire examination Young knew, or during the trial learned, that he was related to Violet. In the absence of such evidence the trial court did not err in overruling defendant's motion for a new trial. State v. Chandler, supra.

Defendant's next point concerns an incident which occurred during plaintiffs' counsel's direct examination of Tom:

'Q. Okay. And with regard to Violet Kennedy and Kay Kennedy, will you tell us what relation they are to you?

'A. My wife and daughter.

'Q. Okay. And how old is Kay?

'A. She's a little over six right now.

'Q. All right. And how long have you and your wife been married?

'A. About twenty-three years.

'Q. Do you have any other children, Sir?

'A. Yes, sir.

'Q. And what are their ages?

'MR. LOWES: Objection, Your Honor, not relevant to this issue, prejudicial, appeal to sympathy.

'THE COURT: No. Go ahead, go ahead.

...

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