Mantz v. Southwest Freight Lines, Inc.

• Decision Date: 09 March 1964
• Docket Number: No. 50076,No. 1,50076,1
• Citation: 377 S.W.2d 414
• Parties: John MANTZ, (Plaintiff) Respondent, v. SOUTHWEST FREIGHT LINES, INC., a Corporation, (Defendant) Appellant
• Court: Missouri Supreme Court

Page 414

377 S.W.2d 414

John MANTZ, (Plaintiff) Respondent, v. SOUTHWEST FREIGHT LINES, INC., a Corporation, (Defendant) Appellant.

No. 50076.

Supreme Court of Missouri, Division No. 1.

March 9, 1964 Motion to Transfer to Court En Banc Denied April 13, 1964.

Guilfoil, Caruthers, Symington & Montrey, John P. Montrey, Gerald M. Smith, St. Louis, for appellant.

Everett Hullverson, St. Louis, Terence M. O'Brien, kansas City, hullverson, Richardson & Hullverson, St. Louis, for respondent.

HYDE, Judge.

Action for damages for personal injuries, verdict for plaintiff for $300,000.00; and after remittitur of $50,000.00 judgment was entered for $250,000.00. Defendant has appealed and has briefed two points: 1--Error in not granting defendant a new trial because of the failure of juror Gilliam to disclose on voir dire examination her pending claim against St. Louis Public Service Company; 2--The judgment as entered by the trial court is grossly excessive.

Plaintiff was driving a 1954 Ford pickup truck, with camper body, east toward Rolla on U. S. Highway 66, a divided highway, two lanes in each direction with a 40-foot median strip between, and was struck from the rear by defendant's 1956 International diesel tandem tractor coupled to a flat 58 Holland empty trailer. As to the issues on liability, defendant says: 'Since the case involved a rear-end accident, the negligence of defendant's agent was not seriously contested. However, the injured plaintiff was the driver of the car, and in view of defendant's driver's testimony that the plaintiff was operating his automobile at night in an unlighted condition, the question of contributory negligence was litigated. The evidence was clearly sufficient to warrant the submission of the issue of contributory negligence to the jury and the Court, finding that a jury case had been made on that issue, did submit it to the jury through instruction No. 3.' The record supports this statement but plaintiff's evidence was that all his 'lights were on and working good.' There were also two reflectors on the rear of his truck.

As to its first point, defendant correctly says 'where a juror intentionally conceals information sought on the voir dire examination, a new trial must be granted if liability is disputed.' See Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459, 463. Defendant claims 'the facts in the record establish conclusively that juror Gilliam intentionally concealed her pending claim when interrogated on voir dire examination.' This trial began December 3, 1962. On November 11, 1961, Mrs. Gilliam fell and sprained her ankle, stepping into a depression in the street, while alighting from a bus operated by the St. Louis Public Service Company. She said she used crutches for three weeks because of this injury. The insurance company which covered the bus company sent an adjuster to see her but by the time the adjuster had reached her she had already hired a lawyer and had had executed a contingent fee contract with a lawyer, which said he was 'to represent her in a claim against St. Louis Public Service Company and the City of St. Louis.'

On the voir dire, plaintiff's attorney, Mr. Hullverson, first stated it was quite important to know 'whether anybody has ever been sued in any sort of lawsuit * * * or he may have sued somebody.' He first asked if any juror 'ever had a lawsuit filed against you * * * ever had a claim made against you'; and then asked, 'Have you ever filed a lawsuit against anybody?' One juror said he had filed a suit about an automobile accident which was settled. Another juror said he filed a suit in a dog bite case in which he obtained a judgment. Plaintiff's attorney getting no further response then asked: 'Now, has anyone else had any such experience, whether you have ever filed any suit, we will ask about the suit first and then we will ask about any claim? Have any of you filed a suit against anyone, or have any of you made any claims that didn't go to suit?' After no response and other questions, defendant's attorney asked plaintiff's attorney: 'Did you ask if anybody ever had any claims that never went to court?' Plaintiff's attorney then said: 'Yes, I wanted to know even the claims'; and a juror said he had made claims twice when his car had been hit and had settled both of them satisfactorily. Plaintiff's attorney then said: 'So you had two claims. I want to make that very clear, because we want you to understand that we would like to know those things. Mr. Montrey would like to know, and I certainly would like to know. If you think of any claims, you might advise me as we go along.' Thereafter, defendant's attorney asked: 'Mr. Hullverson has asked you if any of you members of the panel have instituted suits in your own behalf or made claims in your own behalf. May I expand that question just a little bit, and ask you if any members of your immediate family have had suits or claims against some other person, and not telling me what you have already talked about to Mr. Hullverson.' The only response was from the juror who had told about his automobile accident and who said his wife was with him on that occasion and was injured slightly.

At the hearing on the motion for new trial, Mrs. Gilliam said this was her first jury service and testified as follows: 'Q. Did you at that time have a claim of any kind? A. I didn't know if I had one or not. Q. Do you remember a claim when I asked this question generally, did you remember anything about the claim? A. No, sir. * * * Q. Mrs. Gilliam, when Mr. Hullverson asked these people about claims, did you understand what he meant by a claim? A. Well, it was like people were going up to court any time of this month or then. That is what I understood, you know--Q. You understood that when he said claim, he meant people that were going to court this month? A. Yes. * * * Q. Did you think claims were different from lawsuits? Or the same thing? A. Different. Q. When you though you had a case against the streetcar company what did you think that was? A. I thought, well, I don't think they ever filed for it, so I never heard nothing about it since. Q. Did you think you had a claim against the streetcar company? A. No. * * * I never thought about it when I was on the jury.'

Mrs. Gilliam said she had telephoned her lawyer's office several times without reaching him but had not seen him since she signed the contract and had last talked to him on the phone in August 1962. Her lawyer said he sent a lien letter to the Public Service Company but never discussed settlement. He said: 'The last discussion I had with her * * * I told her that I didn't know whether we would be able to get anything or not, and I didn't feel that it was a case that warranted filing a lawsuit. * * * And I told her at that time that I didn't feel that it was a claim or a case that warranted filing a lawsuit.'

'Whether a verdict shall be set aside for failure of a venireman to disclose some fact on voir dire which might reasonably affect his qualification to sit as a juror is a matter primarily within the sound discretion of the trial court, Hornberger v. St. Louis Public Service Co., Mo.Sup., 353 S.W.2d 635, 642, whose action is conclusive 'unless an abuse of discretion unmistakably appears.' Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795.' Begley v. Adaber Realty & Investment Co., Mo.Sup., 358 S.W.2d 785, 792. See also Barb v. Farmers Insurance Exchange, Mo.Sup., 281 S.W.2d 297; Davis v. Kansas City Public Service Co., Mo.Sup., 233 S.W.2d 679. If the trial court is justified in finding there was no intentional concealment, misrepresentation, deception or prejudice, no abuse of discretion can be found. In Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459, 464, the juror involved had made 40 or 50 claims and had one pending against the defendant at the time over a collision of his car with a streetcar because of which he was fined in police court and about which he had the feeling he had been 'railroaded'. We said: 'The plain and only reasonable inference from this record is that juror Prince intentionally concealed the fact, after direct examination on the subject, that in 1943 and 1944 he had a claim against the appellant. In the circumstances 'it is difficult to conceive how that could be harmless error.'' Refusal to grant a new trial in that case clearly was an abuse of discretion. For another case in which we held a new trial should have been granted (because of a juror's indicated prejudice) see Moore v. Middlewest Freightways, Inc., Mo.Sup., 266 S.W.2d 578; and for other cases finding abuse of discretion in not granting a new trial where intentional concealment appeared see Brady v. Black and White Cab Co., Mo.App., 357 S.W.2d 720 (juror did not answer because he did not remember details); Triplett v. St. Louis Public Service Co., Mo.App., 343 S.W.2d 670 (juror made direct false negative answer). In other cases cited by defendant, Woodworth v. Kansas City Public Service Co., Mo.Sup., 274 S.W.2d 264; Girratono v. kansas City Public Service Co., Mo.Sup., 272 S.W.2d 278, the trial court granted a new trial, this action being affirmed on appeal. As we said in the Woodworth case (274 S.W.2d l. c. 271): '[A]ppellate courts are more liberal in upholding a trial court's action in sustaining a motion for a new trial than in denying it.' In the first place, Mrs. Gilliam's claim was not against the defendant as in the Piehler case. Since it appears that Mrs. Cilliam had been told by her lawyer several months before the trial that filing a lawsuit was not warranted, she reasonably might not expect to get anything for her injury which was not severe; and this could explain her statement that she did not know whether she had a claim or not. Moreover, the jurors who answered the voir dire questions told only about claims that had been sued on or settled. Furthermore, neither lawyer in the...