Logsdon v. Duncan
| Decision Date | 10 September 1956 |
| Docket Number | No. 2,No. 44989,44989,2 |
| Citation | 293 S.W.2d 944 |
| Parties | Arch LOGSDON, Plaintiff-Appellant, v. Leonard W. DUNCAN, Defendant-Appellant, William Gover, Defendant-Respondent |
| Court | Missouri Supreme Court |
John E. Honsinger, Kansas City, for appellant.
Richard H. Beeson, David P. Dabbs, Dean F. Arnold, Kansas City, for Leonard W. Duncan and William Gover.
BARRETT, Commissioner.
Arch Logsdon instituted this action to recover damages for personal injuries against Leonard W. Duncan and William Gover. The trial court directed a verdict in favor of Gover and the jury returned a verdict against Duncan in the sum of $42,000. The trial court overruled Duncan's motions for judgment but sustained his motion for a new trial upon the specific assignment that he had been unduly prejudiced by the failure of a juror on voir dire examination to make full disclosure concerning his wife's damage suit then pending at Independence. The trial court overruled the plaintiff's motion to set aside the order as well as his motion for a new trial as to Gover. The plaintiff, Logsdon, appeals from the order granting a new trial and urges, in addition, that the court erred in directing a verdict in favor of Gover. Duncan has also appealed and insists that his motions for judgment should have been sustained because Logsdon's evidence was not sufficient to establish negligence and a cause of action against him. He also urges that the verdict was excessive and that the court erred in giving a certain instruction. Despite the various motions and assignments only those essential questions necessary to a determination of the appeal in this court will be considered. Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333, 8 A.L.R.2d 710; Crews v. Sikeston Coca-Cola Bottling Co., 240 Mo.App. 993, 225 S.W.2d 812.
In contending that the court abused its discretion in granting a new trial because of Juror Williams' failure to make full disclosure concerning his wife's pending action for damages the appellant Logsdon realizes that he has an 'up-hill climb,' but insists nevertheless that upon the record the court's exercise of discretion did not rest upon any reasonable foundation in fact. In this connection it is urged that in all the cases in which a new trial has been granted 'a pattern emerges' and there is present the constant factor of 'moral laxity or turpitude of the juror, or an unusually disturbing fact in his personal background, was present in conjunction with his failure to disclose facts on voir dire examination.' While it may be possible to find some pattern in the cases, it is not necessary to append this refinement to the established rules. The mere failure of a juror, even after specific inquiry, to make full disclosure of his or his family's claims for damages does not always compel the granting of a new trial. Annotation 38 A.L.R.2d 624, 631. But, the granting of a new trial because of a juror's misconduct in failing to make full disclosure in these respects is the exercise of a discretionary power, Woodworth v. Kansas City Public Service Co., Mo., 274 S.W.2d 264, and for that very reason it necessarily makes a vast difference in this court whether and how the trial court exercised its discretion, whether the trial court refused or granted a new trial. Girratono v. Kansas City Public Service Co., Mo., 272 S.W.2d 278, 281; Reich v. Thompson, 346 Mo. 577, 586, 142 S.W.2d 486, 491, 129 A.L.R. 795. Here, the trial court deeming the juror's failure prejudicial and having granted a new trial for the specific reason assigned in the motion, the only question is whether the trial court's exercise of discretion is reasonably supported by the record. Girratono v. Kansas City Public Service Co., supra.
The plaintiff urges upon this court that the juror's failure to disclose the fact was a mere innocent inadvertence, that he was not even aware of the fact that the suit had been filed. It was the juror's version of his failure to disclose the fact of his wife's pending suit that after his wife's injury he called his employer's attorney and informed him of the facts and that the attorney investigated the solvency of the boy who was driving a car borrowed from a boy friend and found that he was not financially responsible and had no liability insurance and, according to the juror, he did not know that the suit had been filed.
Nevertheless, the admitted fact was that Juror Williams was driving his automobile when it was involved in a collision with another car and his wife was injured. The juror, not his wife, called the lawyer. The suit was filed, not against the boy who was driving the car or the boy who had loaned it but against his friend's employer, the Grandview Super Market. The petition in the wife's suit alleged serious personal injuries and claimed damages in the sum of $15,000 and was then pending at Independence. It is not necessary to set forth all the circumstances and consider the possible inferences, but defense counsel first inquired whether any member of the panel had ever had a claim for damages. Juror Williams responded affirmatively and told about a claim he had had for personal injuries from an automobile collision in 1951. The claim was settled satisfactorily. When defense counsel sought to go into details concerning the claim and settlement plaintiff's counsel objected and the court sustained the objection. In the handling of his claim Juror Williams employed a lawyer, the same lawyer who filed his wife's suit for damages. Then defense counsel stated that he wished to 'broaden' the question and he made this general inquiry, '* * * if any members of your close, immediate family had a damage suit for personal injury, or if any members of your close, immediate family have had a claim for personal injury, whether or not a lawsuit was filed * * *.' Juror McCrary told about a claim for his son's serious personal injuries resulting from an automobile collision but Juror Williams, having forgotten his wife's claim and, as he said, not knowing that a suit had been filed made no response. There is no claim that the juror did not understand the question or its significance, he answered as to his own claim which had been settled. While the lawyer was not then aware of the fact, plaintiff's counsel represented the defendant in Mrs. Williams' suit for damages then pending in Independence. The trial court found, despite the juror's claim to the contrary, that the juror did know of his wife's pending action for damages, that he intentionally concealed the fact after specific inquiry and that he was prejudiced against the defendant and, without further detailed analysis of all the facts and circumstances, the court's finding and exercise of discretion is reasonably supported by the record. Woodworth v. Kansas City Public Service Co., supra; Girratono v. Kansas City Public Service Co., supra; annotation 38 A.L.R.2d 624, and the essentially meritorious questions upon this appeal are whether the plaintiff made a submissible case against Duncan and Gover.
The plaintiff, Logsdon, and the defendants, Duncan and Gover, as well as the witness Guthrie Rogers, were all employed by the Kansas City Board of Education. They were engaged in remodeling and repairing the caretaker's old two-story brick and stone residence at Yates School. Among other tasks they removed an oval-shaped window from the front gable and replaced it with stucco and for that purpose had a scaffold across the front of the house about even with the guttering. In the absence of a foreman, Rogers, a bricklayer, was the 'lead man' and Logsdon was his helper. Duncan and Gover were common laborers, sent there by the foreman, and at the particular time were engaged in removing stone and old bricks from the gable. Rogers was engaged in laying bricks around a first-floor window near an angle in the house and just below an old chimney. Logsdon was cleaning old bricks and carrying them to Rogers. When Logsdon was injured Duncan was on the scaffold and Gover was engaged on the ground near Logsdon. A ball, presumably a 'soft-ball,' some sticks and two or three pieces of bricks were lodged behind the chimney. As Logsdon walked towards the first-floor window with an armload of bricks Duncan, with one foot on the scaffold and one leg on the edge of the roof, punched and dislodged the debris from behind the chimney with a board and a half brick hit Logsdon on the head. And, as stated in the beginning, Logsdon instituted this action against Duncan and Gover to recover damages for his resulting personal injuries.
Again it is not necessary to detail all the circumstances and analyze the numerous claims and all the possible inferences. Duncan in claiming that the court should have directed a verdict in his favor urges that there was no evidence that he was negligent. He urges, when he dislodged the debris, that he had a right to assume, because Gover had warned him, that Logsdon was in a place of safety. It if said that after being warned by Gover he walked from a place of safety into a place of danger and thereby assumed the risk of injury and was guilty of contributory negligence as a matter of law. It is also urged that there is no evidence that Duncan's failure to look over the edge of the scaffold before dislodging the bricks and ball was the proximate cause of his injury because Logsdon admittedly received a warning and was then standing in a place of safety. In so contending Duncan relies, in large part, upon the rules applied to obvious, known dangers in the possessor of land-invitee cases and to the tests of obliviousness, position of peril and warning in humanitarian cases concerned with pedestrians and vehicles involved in railroad crossing accidents. For example: Murray v. D'Oench Co., 347 Mo. 365, 147 S.W.2d 623; Dietz v. Magill, Mo.App., 104 S.W.2d 707; Pentecost v. St. Louis...
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