Learned v. Godfrey
| Decision Date | 14 December 1970 |
| Docket Number | No. 55583,55583 |
| Citation | 461 S.W.2d 5 |
| Parties | Mary Ann LEARNED, Plaintiff-Respondent, v. Rondal GODFREY, Defendant-Appellant. |
| Court | Missouri Supreme Court |
Thurman, Nixon, Smith & Howald, James E. Bowles, Hillsboro, for plaintiff-respondent.
Dearing, Richeson, Roberts & Wegmann, Roland A. Wegmann, Hillsboro, for defendant-appellant.
The question for decision is whether a challenge for cause under Sec. 495.150, RSMo 1969, V.A.M.S., a statute relating to jurors in counties of 60,000 to 100,000 population, extends only to jurors who are in the employ of one who is a client of a lawyer in the case, or does it include a juror who is himself a client of one of the lawyers.
In the case before us--a personal injury suit won by the defendant--the trial court granted plaintiff a new trial for failure to strike two jurors challenged for cause under the above statute. The two jurors were clients of two of the partners in the firm which represented defendant. Defendant appeals. 1 We affirm.
Before reaching the merits, we overrule defendant's contention that plaintiff's counsel, in effect abandoned any challenge he may have had. 2 Without taking the space to set out in detail the portion of the voir dire examination which contains the alleged abandonment, we bear in mind the trial judge was dealing with lawyers of his own circuit, whose courtroom methods he would know. He heard what was said and would also be aware (as we cannot) of the inflection and expression with which the words were spoken by counsel. He would know whether the trial atmosphere was such the objection remained in the case. We can see from his order granting a new trial, that he, with his experience, did not regard the challenges, once made, as having been abandoned or waived. We defer to his judgment on the point.
The statute under consideration reads as follows: 'If upon the voir dire it appears that any juror is in the employ of any person, firm, or corporation who has within the six months last past employed, or who within such time has had in his or its employ, any attorney on either side of the case being tried, the opposing party shall have the right to challenge such juror for cause.'
It first appeared in Laws 1911, p. 304, being Sec. 18 of an act repealing Art. II, Chap. 64, RSMo 1909, relating to selection of jurors in counties of 100,000--175,000, and enacting in lieu thereof a new article for counties of 60,000--200,000 inhabitants. We do not find a decision directly construing the statute, although in Johnson v. Missouri-Kansas-Texas Rr. Co. (Mo.Sup.) 374 S.W.2d 1, 2, in a damage suit tried in Vernon County (to which the statute would not apply), the court, by way of dictum, said: The exact question before the court, however, was whether without a statute a juror is absolutely disqualified because he is presently the client of an attorney for one of the parties.
In Hicks v. Simonsen, 307 Mo. 307, 270 S.W. 318, the statute was upheld against a constitutional attack that it was a special and not a general law. In Privitt v. St. Louis-San Francisco Ry. Co. (Mo.Sup.) 300 S.W. 726, it was held the statute did not deny due process or the right to an impartial jury.
As is readily observed, the statute has an awkward arrangement of clauses and pronouns. The result is to make it capable of being understood in two constructions and, therefore, ambiguous. It can be read as disqualifying only a juror in the employ of any person, firm, or corporation who has employed or has had in its employ, within the six months last past, any attorney on either side of the case being tried. To do this requires reading the clause 'or who within such time has had in his or its employ' as referring to 'any person, firm, or corporation' and not to 'any juror'. Defendant contends the statute goes no further than this.
The statute can also be read as applying to any juror who has had in his employ, or who is in the employ of any person, firm, or corporation who has employed, within the six months last past, any attorney on either side of the case being tried. To do this requires treating the...
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