Lee v. Baltimore Hotel Co.

• Citation: 136 S.W.2d 695,345 Mo. 458
• Decision Date: 13 December 1939
• Docket Number: 36091
• Parties: Annabel Lee v. Baltimore Hotel Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

136 S.W.2d 695

345 Mo. 458

Annabel Lee v. Baltimore Hotel Company, a Corporation, Appellant

No. 36091

Supreme Court of Missouri

December 13, 1939

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Order granting new trial affirmed.

Mitchel J. Henderson, Thos. E. Deacy and W. M. Raines for appellant.

(1) The verdict of the jury could not be set aside because of the incompetency of one juror as ten other qualified jurors signed the verdict. Knight v. Kansas City, 138 Mo.App. 153, 119 S.W. 990; Mo. Const., Art. II, Sec. 28; Toledo Consolidated St. Ry. Co. v. Toledo Elec. Street Ry. Co., 12 Ohio C. C. 367; State v. Breen, 59 Mo. 413; State v. Rouner, 333 Mo. 1336, 64 S.W.2d 916; 92 A. L. R. 1099; State v. Riley, 4 Mo.App 392. (2) No exceptions to said juror having been taken before the jury was sworn or thereafter during the trial of the cause and no objection having been made to said juror, in the motion for new trial, the verdict could not be set aside because of the incompetency of said juror. Secs. 8747, 8751 R. S. 1929; State v. Watson, 104 S.W.2d 272; Allen v. C., R. I. & P. Ry. Co., 327 Mo. 526, 37 S.W.2d 607; State v. Wilson, 230 Mo. 647, 132 S.W 238; Massman v. K. C. Pub. Serv. Co., 119 S.W.2d 833; State v. Taylor, 40 S.W.2d 1079. (3) Failure to comply with legal formalities in summoning and selecting a juror is not grounds for setting aside the verdict herein, when no evidence was adduced that the rights of the plaintiff were prejudiced by the presence of a juror so summoned or selected. State v. Breen, 59 Mo. 413; Sec. 8751, R. S. 1929; Knight v. Kansas City, 138 Mo.App. 153, 119 S.W. 190; State v. Rouner, 333 Mo. 1336, 64 S.W.2d 916; State v. Riley, 4 Mo.App. 392. (4) The court, in setting aside the verdict of the jury and awarding respondent a new trial, acted arbitrarily and unreasonably and without legal authority. Kelso v. Ross Const. Co., 85 S.W.2d 827; Jones v. Kansas City, 76 S.W.2d 340.

Calvin & Kimbrell for respondent.

(1) The trial court had the inherent power, during term time, in the exercise of its discretion, to order, on its own motion or volition, a new trial in this cause. Glitzke v. Ginsberg, 258 S.W. 1004; Nogalski v. Foundation Co., 199 S.W. 176; Ewart v. Peniston, 233 Mo. 695, 136 S.W. 422; Hewitt v. Steele, 118 Mo. 463, 24 S.W. 440; Standard Milling Co. v. White Line Central Transit Co., 122 Mo. 258, 26 S.W. 704; In re Zartman's Adoption, 334 Mo. 237, 65 S.W.2d 951; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 582; Utz v. Dorman, 328 Mo. 258, 39 S.W.2d 1053; Kelso v. Ross Construction Co., 337 Mo. 202, 85 S.W.2d 527; State ex rel. Iba v. Ellison, 256 Mo. 644, 165 S.W. 369; Massman v. Kansas City Pub. Serv. Co., 119 S.W.2d 833. (2) The inherent power of the court, during term time, in the exercise of its discretion, to order a new trial upon its own motion or volition, is subject only to the qualifications that it must give the parties reasonable notice, allow them to be heard, and act upon reasonable grounds and not arbitrarily. Kelso v. Construction Co., 337 Mo. 202, 85 S.W. 527. (3) The common-law power of a court of general jurisdiction to grant new trials, upon the court's own volition, has not been abrogated by any statute in this State. Standard Milling Co. v. Transit Co., 122 Mo. 270, 26 S.W. 704; Hewitt v. Steele, 118 Mo. 463, 24 S.W. 440; State ex rel. Iba v. Ellison, 256 Mo. 644, 165 S.W. 369.

OPINION

Hyde, C.

This is an action for $ 25,000 damages for personal injuries. The jury found for defendant and the trial court, of its own motion during the trial term, granted plaintiff a new trial. Defendant has appealed from this order.

The order granting the new trial made a finding of the facts, upon which it was based, and was, as follows:

"The matter of a new trial in the above-entitled cause coming on regularly for hearing, the court finds the following facts:

"That there was drawn from the general jury-wheel, for service as a juror for the week beginning November 15th, 1937, the name of W. M. Bennett; that thereupon a jury summons was issued to and in the name of W. M. Bennett; that Herbert Daniel obtained possession of said summons, and appeared for jury service, having same in his possession; that said Daniel was present when the general panel was qualified, and that he remained in the jury waiting room; that thereafter the judge of Division Number One made a request for eighteen jurors to try this cause; that the card with the name of W. M. Bennett was drawn from the small jury-wheel by the clerk of the Jury Commission; that Herbert Daniel answered the call of W. M. Bennett when the panel was called under the aforesaid order, and appeared in Division One with the remainder of the panel; that the clerk of Division One called the names of the jurors, including W. M. Bennett, for the purpose of having them take their place in the jury-box, at which time Herbert Daniel answered present when the name W. M. Bennett was called, said Daniel taking his place in the jury-box; thereafter, said Daniel, with the other members of the panel, were duly sworn, and upon said W. M. Bennett's name being called by counsel, Herbert Daniel responded to said name and stated that his name was W. M. Bennett, and further impersonated said Bennett in qualifying as a juror; that said W. M. Bennett's name was left upon the panel of jurors to try this cause, and again answered present, and took his seat in the jury-box when the named W. M. Bennett was called; whereupon said Herbert Daniel was sworn, with the other members of the jury; that said Herbert Daniel sat through the trial of said cause, and, at the conclusion of the trial of said cause, same having been duly submitted to said jury, the said jury retired to their jury-room to deliberate thereon; and thereafter eleven members of said jury returned into court their verdict in favor of the defendant Baltimore Hotel Company, each of said jurors so agreeing to said verdict signing his name thereto, and said Herbert Daniel signing the name of W. M. Bennett to said verdict.

"That subsequent to said trial, and on December 2nd, 1937, said Herbert Daniel appeared in this court, and admitted under his oath that his name is Herbert Daniel, and not W. M. Bennett, and that he impersonated said W. M. Bennett in the selection of the jury and at the trial of the above cause, and that he had untruthfully stated to the court and to counsel for the parties hereto, upon his voir dire examination, that his name was W. M. Bennett.

"The court further finds that said Herbert Daniel was duly qualified as a juror by the Jury Commission of Jackson County, Missouri, and that his name was in but was not drawn from the general jury-wheel and he was not summoned as a juror for the November Term, 1937, of this court; that therefore said Herbert Daniel was an interloper, and fraudulently and wrongfully appeared and qualified as a juror in this case, in the name of W. M. Bennett, and, therefore, without right or authority did sit as a juror and participate in the trial of this cause, and signed the verdict returned therein.

"The court finds as a matter of law that by reason of the foregoing the aforesaid act of said Herbert Daniel was a fraud and imposition upon the court and the parties litigant.

"Wherefore, by reason of said facts so found by the court, the court of its own motion hereby grants a new trial and rehearing of this cause."

Defendant contends that the court had no authority to grant a new trial because no objection was made to this fraudulent juror, no exception was taken at the trial, and no such ground was stated in the motion for new trial; and because more than the number of jurors, required to return a verdict, signed this verdict in addition to this fraudulent juror. Defendant says that the court, therefore, acted arbitrarily and unreasonably and that its order cannot stand even though made during the trial term.

There can be no question about the inherent power of the trial court to set aside a verdict and grant a new trial, at any time during the term in which it is returned, in the reasonable exercise of its discretion, irrespective of grounds stated in a motion for new trial. [Beer v Martel, 332 Mo. 53, 55 S.W.2d 482; Utz v. Dormann, 328 Mo. 258, 39 S.W.2d 1053; State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916; Marsala v. Marsala, 288 Mo. 501, 232 S.W. 1048; State ex rel. Iba v. Ellison, 256 Mo. 644, 165 S.W. 369; Ewart v. Peniston, 233 Mo. 695, 136 S.W. 422.] This power is "subject only to the qualifications that it must give the parties reasonable notice, allow them to be heard, and act upon reasonable grounds and not arbitrarily." [Kelso v. W. A. Ross Construction Co., 337 Mo. 202, 85 S.W.2d 527; In re Zartman's Adoption, 334 Mo. 237, 65 S.W.2d 951.] Exceptions, while essential to preservation for appellate review of matters outside the record proper, are immaterial in considering the propriety of the trial court's action in granting a new trial, because "the trial court may grant a new trial on account of any erroneous ruling made by it, whether excepted to or not." [Sakowski v. Baird, 334 Mo. 951, 69 S.W.2d 649; Bradley v. Becker, 296 Mo. 548, 246 S.W. 561; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482.] Newly discovered evidence (which is certainly not a matter requiring exception during the trial) is also a ground for new trial; and "'where it is shown that matters which might establish prejudice or work a disqualification (of a juror) were actually gone into on the voir dire, and false answers were given, or deception otherwise practiced, the court will be permitted to consider the question on the motion for a new trial (or without it during the trial term), either upon oral testimony taken at a hearing on the moti...