McCormack v. McNamee

Decision Date10 January 1955
Docket NumberNo. 1,No. 44155,44155,1
PartiesGlen L. McCORMACK, Plaintiff-Appellant, v. Wayne L. McNAMEE and Donald Speidel, Defendants-Respondents
CourtMissouri Supreme Court

Thurman, Nixon & Blackwell, Hillsboro, for appellant.

Moser, Marsalek, Carpenter, Cleary & Carter, Lee M. Carter, St. Louis, and H. L. C. Weier, Hillsboro, for respondent Wayne L. McNamee.

Dearing & Matthes, Will B. Dearing, Hillsboro, for respondent Donald Speidel.

LOZIER, Commissioner.

Appellant McCormack (herein called plaintiff), a passenger in a car driven by defendant Speidel, sued Speidel and defendant McNamee for $100,000 damages for personal injuries allegedly sustained on November 12, 1951, in a collision between Speidel's and McNamee's automobiles as a result of the alleged negligence of the two defendants. Speidel cross-claimed against McNamee and McNamee cross-claimed against Speidel for $1,600 and $750 respectively (damages to their respective automobiles). McNamee had verdict and judgment on plaintiff's claim and against Speidel for $600 on his cross-claim. Plaintiff had verdict and judgment against Speidel for $5,000. Plaintiff appealed.

Plaintiff contends that his new trial motion should have been sustained because the statutes relating to the impaneling of the jury were violated (and that his counsel had no knowledge thereof until after the trial) and because the verdict was so inadequate as to conclusively establish bias and prejudice on the part of the jury. He also contends that the trial court should have declared a mistrial under the circumstances hereinafter stated.

Plaintiff's first point is that the trial court erred in overruling his new trial motion 'wherein plaintiff set forth gross violations of the Missouri statutes regulating the impaneling of jurors who tried said cause, and lack of knowledge on the part of plaintiff and his counsel of such procedure and statutory violations until after the trial, the motion being supported by affidavits of four members of the five-member Board of Jury Commissioners as well as verification by plaintiff.' In his 'Argument,' plaintiff argues alleged violations of Sections 494.230, 494.240 and 494.250 (all section references are to RSMo 1949, V.A.M.S.). He concludes: 'Because of the violations of the Missouri Statutes * * * as aforesaid, he was denied a decision in the cause based on the honest deliberatons of twelve qualified men; and his motion for new trial based on the ground of such violations should have been sustained.'

Plaintiff had a verdict and judgment. In the absence of an apparent or demonstrated connection between the size of the verdict and the irregularities in the selection of the jury, and in the absence of the contention that the alleged irregularities rendered the verdict and judgment void ab initio, plaintiff is in no position to urge such irregularities here.

Nevertheless: The case was tried during the September 1953 Term of the Circuit Court of Jefferson County. The transcript shows the names of 24 petit jurors (8, 5, 4, 3, 2, 1 and 1 from the respective seven townships of the county) and of 24 alternates (similarly apportioned among the townships).

Under Section 494.230, the members of the board of jury commissioners of Jefferson County are the circuit judge, the circuit clerk and the 3 judges of the county court. Under Section 494,240, it is the board's duty, not less than thirty days prior to the commencement of the circuit court term, to select names of not less than four hundred qualified persons as prospective petit jurors and alternate petit jurors, selecting 'as near as practicable, the same number from each township in the county according to the relative population'; and, after determining the number of such jurors to be selected from each township, to place the names of the persons from each township on slips of paper in a box and thoroughly mix them. Section 494.250 provides, inter alia, that the circuit clerk, 'so situated as to be unable to see the manes on such slips, shall, publicly, in the presence of said board of jury commissioners, proceed to draw out names separately and singly from' each township until he has drawn the number of names required from that township to serve as such jurors until the list of names of the 24 jurors and 24 alternates is obtained.

The verdicts were rendered, and the ensuing judgments were entered, on October 30, 1953. Plaintiff's new trial motion was filed on November 9, 1953. In that motion, plaintiff alleged, inter alia, noncompliance with the above-summarized provisions of Sections 194.230, 494.240 and 494.250 in the selection of the panel and that 'neither plaintiff nor his counsel had any knowledge of such procedure and statutory violations until after the trial of this case had been completed; and that, therefore, plaintiff had no opportunity previous to the filing of his motion for new trial to object to or challenge the panel.' In his motion, plaintiff requested 15 days within which to file affidavits in support thereof. (Plaintiff's attorney also orally made a similar request when he filed the motion.) The request was granted.

On November 23, 1953, plaintiff filed the affidavits of each of the 3 judges of the county court 'that he did not meet with the other members of the board of jury commissioners at any time prior to the September Term, 1953, of the Circuit Court of Jefferson County, Missouri, for the purpose of selecting names of persons to serve upon the petit jury panel for that term; that he did not participate in any manner in the selection of names of persons to serve upon said panel at said term; and that he knows nothing about the method used for the selection of said panel at said term'; and the affidavit of the circuit clerk that he had been appointed to that office on August 8, 1953, and 'that at no time subsequent to the aforementioned date did he meet with the board of jury commissioners * * * for the purpose of selecting names of persons to serve upon the petit jury panel for the September term of the circuit court * * * and that he did not participate in any manner in the selection of names of persons to serve upon the said panel at said term and that he knows nothing about the method used for the selection of said panel at said term.'

On December 2, 1953, the parties appearing by their respective counsel, plaintiff's new trial motion was 'taken up, heard and considered * * * and overruled.' Insofar as the transcript shows, the only evidence offered by plaintiff at the hearing upon the motion was the affidavits of the judges of the county court and the circuit clerk.

In our view, the trial court properly ruled this particular issue for several reasons. Section 494.250 contains a provision for the selection of the panel in the event it is not selected by the board of jury commissioners in accordance with the above-summarized provisions of Sections 494.240 and 494.250. Such provision is: 'provided, that in all cases where the board * * * shall fail to select such jurors and alternates * * * the sheriff of the county shall summon such petit jurors from the several townships in the county, according to their respective populations, as nearly as may be, not less than 10 days before the first day of the term of the court for which such jurors are summoned * * *.'

Absent evidence to the contrary, it must be assumed (and the trial court was entitled to assume) that the sheriff selected the panel in accordance with that statutory provision. 'On appeal, the presumption always it that the decision of the lower court was correct, and the burden is upon appellants to affirmatively show error as a condition precedent to reversal.' State to the Use of Consolidated School Dist. No. 42 of Scott County v. Powell, 359 Mo. 231, 221 S.W.2d 508, 511. 'The appellate court will indulge any proper presumption in favor of the proceedings summoning and impaneling a jury' and 'in the absence of a showing to the contrary, that the jury was legally and properly constituted of qualified persons.' 3 Am.Jur., Appeal and Error, Sec. 936, p. 502. And see State v. Woodard, 309 Mo. 19, 273 S.W. 1047, 1049, involving selection of the panel by the sheriff under what is now Section 494.250. Instant plaintiff-appellant has failed to sustain his burden of proof as the record does not affirmatively show that the sheriff did not select the penel in accordance with the pertinent provision of Section 494.250.

At the time plaintiff-appellant filed his reply brief in this court, September 14, 1954, he filed the affidavit (executed September 7, 1954, after respondents Speidel and McNamee had filed their briefs here) of the sheriff of Jefferson County that 'he has read and examined the list of regular and alternate petit jurors for the September term 1953, as set forth on pp. 197-198 of' the transcript and 'that although he did summons as jurors the persons whose names appear on the aforementioned list, he did not select, nor participate in the selection of, the persons whose names appear on the aforementioned list as regular and alternate petit jurors for the September term, 1953 * * *; that he does not know the method by which the persons whose names appear on the aforementioned list were selected; and that he received the aforesaid list of regular and alternate jurors * * * from the office of the circuit clerk * * *.'

Stating that he 'fully realizes that he is defectively raising and preserving this point in his argument,' plaintiff argues that the error 'affected his substantial rights * * * and that manifest injustice will be done' unless this court considers the sheriff's affidavit under Supreme Court Rule 3.27, 42 V.A.M.S. That rule is: 'Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the...

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  • Kirst v. Clarkson Const. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • October 12, 1965
    ...Corp., 360 Mo. 1015, 1021, 232 S.W.2d 495, 499(4); Cochran v. Wilson, 287 Mo. 210, 228, 229 S.W. 1050, 1056(5). See McCormack v. McNamee, Mo., 274 S.W.2d 272, 279(10). 3 But, aside from that principle, it is crystal clear that plaintiff's appellate position necessarily must rest and depend ......
  • Deacon v. City of Ladue
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    • Court of Appeal of Missouri (US)
    • September 18, 1956
    ...contained in such a motion for new trial do not prove themselves, notwithstanding that the motion is verified by a party. McCormack v. McNamee, Mo.Sup., 274 S.W.2d 272; Block v. Rackers, Mo.Sup., 256 S.W.2d 760. Further, the aggrieved party must show that (1) the evidence has come to his kn......
  • State v. Tyler
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    • Court of Appeal of Missouri (US)
    • September 4, 1979
    ...will presume in the absence of evidence that the jury was legally and properly constituted of qualified persons. McCormack v. McNamee, 274 S.W.2d 272, 274-5 (Mo.1955). Even should it have developed, at least after verdict, that a juror was not technically qualified say by reason of residenc......
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    ...on the basis of trial error on the issue of liability, in favor of a plaintiff who has recovered a substantial verdict. McCormack v. McNamee, Mo.Sup., 274 S.W.2d 272, 279(9, 10); Stone v. Farmington Aviation Corporation, 360 Mo. 1015, 232 S.W.2d 495; Cochran v. Wilson, 287 Mo. 210, 229 S.W.......
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