Mathis v. Jones Store Co.

• Decision Date: 23 September 1997
• Docket Number: Nos. WD,s. WD
• Parties: Mary and Ed MATHIS, Respondents-Appellants, v. JONES STORE COMPANY, Appellant-Respondent, Rite-Way Magic Supply, Inc., Respondent. 52597, WD 52618.
• Court: Missouri Court of Appeals

Page 360

952 S.W.2d 360

Mary and Ed MATHIS, Respondents-Appellants, v. JONES STORE COMPANY, Appellant-Respondent Rite-Way Magic Supply, Inc., Respondent.

Nos. WD 52597, WD 52618.

Missouri Court of Appeals Western District.

Sept. 23, 1997.

G. Spencer Miller, Christopher L. Heigele, Ed and Mary Mathis, Kansas City, for appellants.

Eric T. Swanson, Theresa Shean Hall, Knipmeyer, McCann, Smith, Manz & Gotfredson, Kansas City, for Rite-Way Magic Supply, Inc., respondent.

Richard T. Merker, Arlen L. Tanner, Wallace, Saunders, Austin, Brown and Enochs, Kansas City, for The Jones Store Co., respondent.

Before ELLIS, P.J., and LOWENSTEIN and HOWARD, JJ.

ELLIS, Presiding Judge.

The Jones Store Company appeals from a jury verdict in the Circuit Court of Clay County awarding Mary Mathis $50,000 in damages for bodily injuries sustained when she slipped and fell in the Jones Store. Mathis cross-appeals from the court's order granting the Jones Store a $14,128.90 credit against the judgment, for monies paid prior to trial.

On March 30, 1994, an elderly woman, described by all as a "bag lady," ate lunch at the Hawthorne Restaurant, located in the first floor of the Jones Store Company at 1201 Main in Kansas City, Missouri. ¹ Upon finishing her meal, the woman left the restaurant area and walked toward the restrooms. Mary Smith, the waitress who had served the woman, watched her stop at an unattended cleaning cart standing in front of the restrooms, pick up an aerosol can and, in a circular motion, spray her body from the knees up. When the lady finished, she replaced the can and left the store. Shortly thereafter, Mary Mathis walked past the cart on her way to the restroom. ² As she passed the cart, she slipped and fell, striking her left arm and shoulder on the floor. While lying on the floor Mathis noticed a greasy substance that felt and smelled like wax.

On January 18, 1995, Mathis and her husband filed suit against the Jones Store Company for damages sustained from her fall. The Jones Store filed a third-party petition against Rite-Way Magic Supply, Inc., the company that provided janitorial services to the Jones Store, and owned the cleaning cart left by the restroom, seeking indemnification for any damages awarded to Mathis. A jury trial commenced on February 5, 1996. At the close of evidence, both defendants moved for a directed verdict. The trial court denied the Jones Store's motions, finding that Mathis made a submissible case of negligence against the Jones Store. However, the court sustained Rite-Way's motion finding that, as a matter of law, the service contract did not obligate Rite-Way to defend or indemnify the Jones Store. Mathis' case was submitted to the jury, which subsequently returned a verdict in favor of Mathis in the amount of $50,000. The court entered judgment accordingly.

Thereafter, on March 27, 1996, the court heard evidence on the Jones Store's motion for new trial and motion for credit against the judgment. In its motion for credit, the Jones Store requested a credit against the judgment in the amount of $14,128.90, representing payments made for Mathis' medical expenses. The trial court ordered a credit of $14,128.90 in favor of the Jones Store. Both the Jones Store and Mathis appeal from the judgment.

The Jones Store's first point concerns the court's refusal to grant a mistrial based on juror misconduct. The Jones Store moved for a mistrial several days into trial, when a Jones Store employee overheard Juror Thomas Collins and Alternate Juror Thomas Edmonds talking in the hallway. According to the employee, she heard one of the jurors say, "I don't see what the defense can do to counter what we've already heard." The employee also heard the words "the cleaning cart." After being informed of this conversation, the court questioned Juror Collins and Alternate Juror Edmonds, individually, out of the presence of the jury. Alternate Juror Edmonds told the court that he and Juror Collins "did not discuss the facts of the case," but did talk "about some of the points that we'd probably have to make decisions over but nothing about the facts themselves." Alternate Juror Edmonds further told the court that neither he nor Juror Collins expressed an opinion about fault or liability and that no actual testimony had been discussed. Juror Collins essentially denied that he and Alternate Juror Edmonds were actually discussing the case. After questioning the jurors and considering their responses in the light most prejudicial to them, the court concluded that no prejudice had occurred and overruled the motion for mistrial.

The Jones Store contends the trial court erred in failing to grant a mistrial, asserting that prejudice should be presumed because Juror Collins was not entirely forward with the court when he essentially denied discussing the case with Alternate Juror Edmonds. It relies on Rife v. State Farm Mut. Auto. Ins. Co., 833 S.W.2d 42, 44 (Mo.App. W.D.1992) and Williams by and Through Wilford v. Barnes Hosp., 736 S.W.2d 33, 38 (Mo. banc 1987), which stand for the proposition that intentional non-disclosure of information requested of a juror during voir dire creates a presumption of bias and prejudice. We do not disagree that Rife and Williams stand for the stated proposition. Moreover, our recent holding in Groves v. Ketcherside, 939 S.W.2d 393 (Mo.App. W.D.1996) reiterates it. However, the facts here do not involve intentional non-disclosure by a juror during voir dire and therefore, the cited cases are inapposite.

In the instant case, the issue is juror misconduct by two jurors talking about the proceedings prior to jury deliberations. The test for juror misconduct is:

Parties and jurors should avoid all appearance of evil, and if any contact motivated by improper design appears, the jury should ordinarily be discharged or a new trial granted, regardless of the existence of actual prejudice. Accidental and casual contacts with jurors are of rather common occurrence and often unavoidable. If the contact has been wholly innocent, a mistrial should not ordinarily be granted unless it can reasonably be found that there was some improper influence on the jury. Where a juror, by some inquiry or voluntary statement has raised a question as to his impartiality, the question becomes essentially one of fact, and primarily this decision rests with the trial court.

Sunset Acres Motel, Inc. v. Jacobs, 336 S.W.2d 473, 479 (Mo.1960) (citation omitted). The trial court hears the evidence concerning the alleged misconduct and is, therefore, in the best position to determine the credibility and intent of the parties and to determine any prejudicial effect of the alleged misconduct. State v. Simms, 810 S.W.2d 577, 581 (Mo.App. E.D.1991). For this reason, the granting of a mistrial based on juror misconduct rests within the sound discretion of the trial court. Id. "[I]n the final analysis, every case rests upon its own particular facts and a large discretion is rightly vested in the trial judge who sits as an intimate observer of the whole chain of events." Sunset Acres Motel, Inc. v. Jacobs, 336 S.W.2d at 479. The trial court's ruling will not be disturbed absent an abuse of that discretion. McMullin v. Borgers, 806 S.W.2d 724, 733 (Mo.App. E.D.1991). Finally, in Berry v. Allgood, 672 S.W.2d 74 (Mo. banc 1984), our Supreme Court rejected the plaintiff's contention that the trial court should have granted a new trial based on juror misconduct in talking casually with two defendants during a lunch break. In a per curiam opinion, the court affirmed the judgment "substantially for the reasons set forth by Judge Smith in his opinion for the Court of Appeals, Eastern District, copy of which is appended." Id. Judge Smith's opinion states:

[P]laintiffs suggest this case involves misconduct as a matter of law because of violation by the juror of M.A.I. 2.01. M.A.I. 2.01 ... says ... that the juror should not remain in the presence of anyone "who is discussing the case when the court is not in session." The result of such a discussion, the instruction says, might cause some outside influence or comment to influence a juror.... We cannot conclude that conversation between a juror and a party is per se misconduct as a matter of law. To do so would be to ignore the clear language of Sunset Acres Motel, Inc. v. Jacobs, supra, and Riley v. St. Louis Public Service Co., supra [245 S.W.2d 666 (Mo.App.1952)]. It has been consistently and uniformly held in this state that the granting of a new trial on the grounds of juror misconduct lies within the sound discretion of the trial court.

Id. at 78 (citations omitted; emphasis added).

From the foregoing, it is clear that issues relating to alleged juror misconduct are left to the sound discretion of the trial court, and rulings on such matters will not be disturbed on appeal absent a clear showing of abuse of discretion. ³Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Anglim v. Missouri Pac. R.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992).

Turning to the instant appeal, we observe first that the incident was promptly reported to the court, and the trial court immediately questioned the jurors involved. Counsel for all parties were present and were given the opportunity to make inquiry of the jurors. The trial judge evaluated the jurors' demeanor and conduct during the interrogation. Juror Collins essentially denied having a conversation about the case. Even assuming, as the trial court did, that he was not completely forward with the court, the trial judge was still "convinced that [Juror Collins]...