Littell v. Bi-State Transit Development Agency, BI-STATE

• Decision Date: 21 November 1967
• Docket Number: No. 32714,BI-STATE,32714
• Citation: 423 S.W.2d 34
• Parties: Ewell LITTELL, Jr., Plaintiff-Respondent, v.TRANSIT DEVELOPMENT AGENCY, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 34

423 S.W.2d 34

Ewell LITTELL, Jr., Plaintiff-Respondent, v. BI-STATE TRANSIT DEVELOPMENT AGENCY, a Corporation Defendant-Appellant.

No. 32714.

St. Louis Court of Appeals, Missouri.

Nov. 21, 1967.

Motion for Rehearing or to Transfer to Supreme Court Denied

Dec. 28, 1967.

Motion to Transfer Denied Feb. 12, 1968.

John D. Schneider, St. Louis, for appellant.

James F. Koester, St. Louis, David G. Dempsey, Clayton, for respondent.

CLEMENS, Commissioner.

The plaintiff got a verdict and judgment of $5,000 for personal injuries and $1,000 for property damages from a collision between his car and defendant Bi-State's bus. The defendant appeals.

Defendant contends the trial court erred in (1) denying voir dire examination to discover bias against plaintiff's obligation to prove negligence, (2) refusing to let defendant read, as admissions against interest, allegations plaintiff had made against a co-defendant, (3) permitting plaintiff to argue injuries unsupported by evidence, and (4) allowing excessive damages.

Voir Dire Examination

Plaintiff pleaded and later submitted defendant's negligence in failing to keep a lookout. On voir dire defendant asked:

'(Is there) anybody on the panel who feels that they could not sit on this case, they feel that their feelings concerning the law is such that they could not give effect to the law that is up to the plaintiff to prove that my client was negligent, that is, it's up to the plaintiff that the burden of proof is on the plaintiff to prove negligence? Anybody who feels that way? Anybody who feels that he would not give _ _.'

When plaintiff objected defense counsel explained to the court that he was not asking for a commitment from the veniremen, but did want to know whether any of them had personal feelings against the proposition that a plaintiff has to show the defendant is negligent before plaintiff can recover. The court sustained plaintiff's objection but did let defendant ask whether the veniremen would have any compunction in following the law as thereafter declared by the court.

The issue is this: On voir dire may a defendant ask the panel whether the existing state of their kinds is such that they could not give effect to the law placing the burden on the plaintiff to prove defendant's negligence? Our answer will depend on a litigant's right to discover the existence of bias, and the limitations imposed on that inquiry to prevent counsel from using the question to mask an argument, to arouse sympathy, to get jurors to speculate on contingencies, or to commit them to a verdict.

The constitutional right to a trial by jury would be a mockery of justice if it did not guarantee a jury with minds free of bias. ¹ As said in Murphy v. Cole, 338 Mo. 13, 88 S.W.2d 1023(2), 103 A.L.R. 505: 'If for any reason, whether statutory or not, a prospective juror is not in a position to enter the jury box with an open mind, free from bias or prejudice in favor of or against either party to the cause, and decide the case upon the evidence adduced and the law as contained in the court's instructions, he is not a competent juror.'

Since bias often lies deep within the minds of prospective jurors, counsel should be allowed a wide latitude to expose that bias. ² The cited cases--and others collected in 18 Mo.Digest, Jury k131--support the statement made in 31 Am.Jur, Jury, § 139:

'A wide latitude is allowed counsel in examining jurors on their voir dire. The scope of inquiry is best governed by a wise and liberal discretion of the court, but the adverse litigants should be given the right to inquire freely about the interest, direct or indirect, of the proposed juror, that may affect his final decision. Thus, reasonable latitude should be given parties in the examination of jurors to gain knowledge as to their mental attitude toward the issues to be tried for the purpose of aiding them in striking jurors, if they are not successful in challenging them for cause. However, as a general rule, the examination of jurors on voir dire should be restricted to questions which are pertinent and proper for testing the capacity and competency of the juror. An examination of a prospective juror on his voir dire is proper so long as it is conducted strictly within the right to discover the state of mind of the juror with respect to the matter in hand or any collateral matter reasonably liable to unduly influence him, and questions which go primarily to the ascertainment of any probable bias or ground of incompetency, as a basis for a challenge for cause, or possibly of a peremptory challenge, are permissible.' (Our emphasis.)

This principle has been followed to allow questions about the states of jurors' minds on a variety of subjects--states of mind that counsel believed might affect a prospective juror's ability to dispassionately reach a verdict based on the evidence and the law of the case. Thus, in civil cases it is proper to probe the minds of prospective jurors to discover prejudice because of sympathy for a child, ³ racial bias, ⁴ the large amount sued for, ⁵ social or business relations, ⁶ or holding a policy of insurance. ⁷ Similarily, in criminal cases this right to discover bias is properly invoked to discover conscientious scruples against the death penalty, ⁸ convicting on circumstantial evidence, ⁹ and the defenses of insanity ¹⁰ and self-defense. ¹¹ And a defendant in a criminal case may seek to determine whether prospective jurors have any fixed opinions against the principle of presumption of innocence. ¹²

We believe defendant's voir dire question came within the scope of properly discoverable bias--whether the prospective jurors' feelings were such that they could not give effect to the law that the burden of showing negligence was on the plaintiff. Several factors bear out the possibility of such bias. The defendant was a large corporation being sued by a working man. It is general knowledge that some injuries, like those to workmen, may be compensable regardless of fault. The existence of liability insurance is general, and often misunderstood to afford compensation regardless of fault. Some of the veniremen may have had so firm a belief that a person injured by a bus should be compensated that it would prevent them from returning a verdict against the injured plaintiff even though defendant was not negligent. All those beliefs are unfounded and unreasonable, but we cannot say they do not exist in the minds of some prospective jurors. The point before us is whether the defendant was entitled to discover whether that bias did exist. The wide latitude allowed litigants to discover bias demanded that the defendant, in the interest of securing a fair and impartial jury, be allowed to make proper inquiry on the subject.

We say proper inquiry, because the right to discover bias is hedged with restrictions to insure that the inquiry is not perverted. We do not find that defendant's voir dire question violated these restrictions.

One restriction is that the question must be limited to the prospective jurors' existing state of mind. ¹³ The converse is that the question may not seek to make the jurors speculate on contingencies or commit them to a certain verdict. ¹⁴ In State v. Mosier, Mo., 102 S.W.2d 620(7), the court said: 'The correct procedure is for counsel to ask the members of the panel whether, if the court later instructs them in a specified manner, they have any opinion or conscientious scruples such as would prevent them from returning a verdict accordingly * * *.' Here, defendant's question was not that precise but it did seek to learn the jurors' existing state of kind; it did not seek any commitment.

Another restriction is that on voir dire counsel may not tell the panel what the court's instructions will be. ¹⁵ The vice of such speculative statements on voir dire is readily apparent, but we see no such vice here. Defendant's question said nothing about instructions. He was inquiring about an essential part of plaintiff's case: the burden of showing defendant's negligence. This was not speculative because the trial court had to instruct on burden of proof by giving MAI 3.01.

Still another curb on voir-dire bias questions is that they not be used to disguise arguments or pleas for sympathy. ¹⁶ We have examined the question itself and the colloquies before and after the court's ruling, and find not a trace of camouflage. In fact, the trial court announced that its ruling denying the question was based on Smith v. Nickels, Mo.App., 390 S.W.2d 578. The voir dire question there was 'Would any of you hesitate to find in favor of my client if you felt my client wasn't to blame for this accident?' That question was condemned because it sought to commit the jury to a verdict, a vice not present here.

We rule that defendant's voir dire question was not improper. Although poorly worded, its substance was correct. Its form was unobjectionable since it did not violate the principles of commitment and speculation, nor purport to tell the jury what the court's instructions would be; nor was it argumentative. The question would have been better if it had simply asked the panel whether any of them had a fixed opinion against the proposition that in a case of this kind the plaintiff could recover only if the jury believed the defendant was negligent.

We are aware of the discretion allowed a trial court in ruling on the propriety of voir dire questions. But 'it is also one of the highest duties of courts, in the administration of the law concerning selection of jurors and juries, to seek to accomplish that purpose (an impartial jury).' Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695(6--10), 127 A.L.R. 711. In the interest of justice to the defendant's effort to determine the impartiality of the panel, the trial court should have allowed the question.

Pleadings as Admissions Against Interest

Defendant's next point is that the court erred in excluding--as...