Lightfoot v. Kurn

• Decision Date: 27 July 1942
• Docket Number: No. 6315.,6315.
• Citation: 164 S.W.2d 77
• Parties: LIGHTFOOT et al. v. KURN et al.
• Court: Missouri Court of Appeals

164 S.W.2d 77

LIGHTFOOT et al. v. KURN et al.

No. 6315.

Springfield Court of Appeals. Missouri.

July 27, 1942.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

"Not to be published in State Reports."

Action by T. G. Lightfoot and M. L. Gill, a copartnership trading under the firm name of Lightfoot Son Produce Company, against J. M. Kurn and John G. Lonsdale, trustees of the St. Louis-San Francisco Railway Company and New York Central Railroad Company, for damages to three carloads of eggs. From an order granting plaintiffs' motion for new trial, defendants appeal.

Reversed.

E. G. Nahler and A. P. Stewart, all of St. Louis, and Mann & Mann and J. Weston Miller, all of Springfield, for appellants.

Hamlin & Hamlin, of Springfield, for respondents.

BLAIR, Presiding Judge.

This is a suit, originally in three counts, seeking damages against defendants (appellants) Kurn et al. for damages to three carloads of eggs in crates, shipped to plaintiffs (respondents) themselves, over the Frisco and New York Central Railroads, to the City of New York. The original suit was filed December 31, 1936, in Division Two of the Greene County Circuit Court. A change of venue was taken by plaintiffs and the case went to Division One of said court. After the suit underwent various pleadings, an amended petition was filed and the case was tried on two counts in said division at the September Term, 1939, of said court, resulting in a unanimous verdict for plaintiffs in the sum of $90.14 and interest thereon, on the first count, against all defendants, and against plaintiffs and in favor of all defendants on the second count.

In due time, plaintiffs filed their motion for new trial. After hearing evidence on such motion, the trial judge sustained plaintiff's motion for new trial on the sole "ground of misconduct on the part of one member of the jury in said cause."

Not being satisfied with this action, the defendants appealed from said order to this Court and say that, in addition to the alleged error of the trial judge in granting a new trial for the reason stated, the verdict should have been in favor of defendants as a matter of law under all the evidence, and no new trial should have been granted plaintiffs, as they were not entitled to a verdict on either count of their amended petition in the first place.

Respondents not only do not urge any other reason for the granting of such new trial, but assert that the evidence was sufficient to submit the case to the jury on the merits and say that the new trial was well granted for the reason given.

We will first take up for consideration the claim of appellants that the trial court erred in granting such new trial for the reason stated by the trial judge. Before doing so, however, we should observe that, unless the trial judge plainly erred in granting such new trial, his action in so doing should be approved, and only disapproved in case he has erred clearly in granting such new trial.

It appears from the evidence heard by the trial judge, and he could so find (if the verdict of the jury could be challenged in the manner in which it was challenged), that one Otto Herrick was one of the jurymen and that said Herrick, while such juryman, in the trial of this case and during a recess of court, telephoned to someone in the rate department of the Frisco Railroad and asked that man if the railroad insured eggs on shipment against freezing and was assured by that man, whom said juror did not know, that the railroad would so insure eggs in shipment, if the rate for such insurance was paid, and was not an insurer unless that service was paid for. That was one of the questions in the case and the jury must decide whether or not defendants were liable to plaintiffs on account of eggs freezing en route to the destination of shipment, when a special charge was not made for that service. The juror on his own admission was guilty of such misconduct. Proof of such misconduct was made by the juror Herrick and two other members of the jury. There was no outside proof. Such proof was made over the objection and exception of defendants on the ground that the verdict of a jury could not be impeached by any member of the jury which rendered the verdict.

The trial judge filed a memorandum opinion, in which he attempted to distinguish between misconduct of a juryman in the deliberation of a case and while in the jury room, and misconduct of such juryman when away from other members of the jury. Juror T. P. Nickle testified that Herrick told him that he was going to get this information, and afterwards told Nickle that he had secured it. The record does not show exactly what Herrick said to Nickle.

In his memorandum opinion, the trial judge rather criticised this Court as having written the case of Hoffman v. Dunham, 202 S.W. 429. But the trial judge apparently did not read the case as carefully as he might have done, since the case was written by the Kansas City Court of Appeals and not by this Court. At page 431, of 202 S.W., Judge Bland, among other things, said: "One of the grounds set up by defendants in their motion for a new trial was that after the case was given to the jury for consideration and for their verdict, and before bringing in the verdict, the jurors were excused over night, and that some of them that night visited the scene of the accident. This allegation was supported by several affidavits, some of which were competent and some were not. The affidavits of Jurors Peeples and Withers were not competent, although they concerned things that happened outside of the jury room, for the reason that they tended to impeach the verdict of the jury. Herring v. Wabash R. R. Co., 80 Mo. App. [562], loc. cit. 568, 569; McCormick v. City of Monroe, 64 Mo.App. [197], loc. cit. 202."

An examination of that case and the cases cited in the opinion of Judge Bland seem to support the ruling made. In the Herring case, cited by the trial judge, Judge Bond, afterwards a Commissioner and member of the Supreme...