McManama v. United Railways Company of St. Louis

• Decision Date: 03 June 1913
• Citation: 158 S.W. 442,175 Mo.App. 43
• Parties: MILTON G. McMANAMA, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Court of Appeals

158 S.W. 442

175 Mo.App. 43

MILTON G. McMANAMA, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, St. Louis

June 3, 1913

Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.

Judgment affirmed.

Boyle & Priest and G. T. Priest for appellant.

(1) The court erred in overruling defendant's challenge of Juror Frederick Kitzing, on his voir dire. Carroll v Railroad, 157 Mo.App. 247; Heidbrink v Railroad, 133 Mo.App. 40; Theobold v. Transit Co., 191 Mo. 428. (2) The court erred in overruling defendant's motion to require plaintiff to elect as to which cause of action stated in his petition he would proceed to trial on, which said motion was renewed at the beginning of plaintiff's case in chief and at the close of plaintiff's case in chief, being denied by the court in each instance. Carroll v. Railroad, 157 Mo.App. 247. (3) The court erred in denying defendant's motion to make plaintiff's petition more definite and certain. Shareman v. Transit Co., 103 Mo.App. 515. (4) The court erred in giving plaintiff's instruction No. 2, on the measure of damages, and permitting the jury, under said instruction, to return damages for permanent injuries to plaintiff when there was no evidence in the case to sustain such issue. Hosse v. Lemp, 26 Mo. 374; Plow Co v. Sullivan, 158 Mo. 453; Smedley v. Railroad, 118 Mo.App. 103.

H. A. Loevy, Vincent L. Boisaubin and Jones, Hocker, Hawes & Angert for respondent.

(1) The trial court was right in overruling defendant's challenge to Juror Frederick Kitzing, on his voir dire. A juror is not disqualified unless his bias, prejudice or ill will is so great as to influence his mind or warp his judgment. And of this the trial court is the best judge, whose finding should not be set aside unless clearly and manifestly against the weight of the evidence. Carroll v. Railroad, 157 Mo.App. 247; Heidbrink v. Railroad, 133 Mo.App. 40; Theobald v. Transit Co., 191 Mo. 428; State ex rel. v. Cunningham, 100 Mo. 388; Sec. 7283, R. S. 1909; McCarthy v. Railroad, 92 Mo. 536; State v. Rasco, 239 Mo. 535; Commonwealth v. Brown, 9 Am. St. Rep. 736; Montgomery v. Railroad, 90 Mo. 451; Coppersmith v. Railroad, 51 Mo.App. 357. (2) The trial court was right in overruling defendant's motion to require plaintiff to elect. The allegation complained of did not constitute two separate and distinct causes of action, was perfectly harmonious and consistent, was really immaterial, and was at most mere matter of inducement. Behen v. Transit Co., 186 Mo. 430; Sec. 1828, R. S. 1909; Sec. 1831, R. S. 1909; White v. Railroad, 202 Mo. 539; Phillips on Code Pleading, sec. 286, p. 269; Canaday v. Railroad, 134 Mo.App. 282; Rapp v. Transit Co., 190 Mo. 144. (3) The trial court was right in overruling defendant's motion to make plaintiff's petition more definite and certain. Defendant was properly advised of the particular negligence; the precise nature of the charge was perfectly apparent; the allegation objected to was mere matter of inducement, immaterial and unnecessary, and hence not subject to a motion to make more definite and certain. Willis v. Railroad, 44 Mo.App. 51; Sec. 1815, R. S. 1909; Day v. Day, 90 N.Y.S. 680; Railroad v. Rolfe, 58 S.W. 870, 76 Ark. 220; Heltonville Mfg. Co. v. Fields, 138 Ind. 58; Cheney v. Railroad, 78 Wis. 223. (4) The trial court was right in giving instruction No. 2 on the measure of damages. The evidence is sufficient to allow the jury to pass upon the question of the permanency of the injury and to consider it in making up the damages.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while attempting to alight from a car of the defendant, street railway company. The trial, before the court and a jury, resulted in a verdict for plaintiff in the sum of $ 2500. Judgment was entered accordingly, and the defendant appealed. For a determination of the questions before us it is unnecessary to set out the pleadings, or review the evidence.

I. Appellant makes four assignments of error. The first of these pertains to the action of the court in overruling the defendant's challenge for cause of a juror, one Frederick Kitzing, upon the ground that the examination of this juror, on his voir dire, showed that he was prejudiced against the defendant, and therefore incompetent to sit upon the jury.

In regard to this assignment of error it will be well to set out what took place upon the examination of this juror during the impaneling of the jury. The juror stated that two of his daughters had been injured in a street car accident; and thereupon he was examined as follows:

"Q. What member of your family was injured? A. I had two daughters. Q. Did they settle the matter? A. The company sent a man up there and settled it, and satisfied the girls. Q. But it was not satisfactory to you? A. I had nothing to do with it; I had to pay the doctor bill which they refused to pay. One was laid up six months after it. Q. That fact created a feeling of dislike towards the company? A. It should not. Q. But it did? A. Yes, a little. Q. You still have that feeling that the company didn't do just right in not paying that doctor bill? A. I have that feeling.

"Mr. Priest: I challenge the juror for cause.

"By the Court: Do you feel that that disappointment that you had over the nonpayment of that doctor's bill would necessarily have any influence in your deciding a case in which the same company was a party? A. It would not. Q. Could you try this case, acquit yourself of any feeling, and try it fairly on the evidence as you heard it here and under the instructions of the court? A. I always try to do justice to everybody. Q. Of course, this question must be addressed to your own conscience; we can't tell how your mind may work on that subject. It must be left to you to say whether, under your oath, you could say that you would try this case just as fairly as if the incident had not happened in your family, or whether it would have some influence with you in weighing the evidence and deciding the case. A. I think I could do justice right. Q. You don't think it would have any influence with you in deciding this case? A. I don't think it would. Q. You could take this case up and decide it on its own facts, no matter what they in some other case might have done? A. Yes, sir.

"The Court: The challenge is not well taken."

To this action of the court the appellant duly preserved its exceptions, and insists that the same was reversible error. In support of its contention in this regard we are cited to Carroll v. United Rys. Co., 157 Mo.App. 247, 137 S.W. 303; Heidbrink v. United Rys. Co,. 133 Mo.App. 40, 113 S.W. 223; Theobald v. Transit Co., 191 Mo. 395, 90 S.W. 354. In the Carroll case the juror on his examination, in answer to a question as to whether he entertained any feeling of ill will against defendant, said: "I would be against them, because I have had some experience." In answer to a further question he said that he had a feeling of ill will against the defendant. He was told by the court to stand aside, but, upon finding that there was no juror to take his place upon the panel, he was recalled and further examined by the court, and, upon his statement that his feeling of ill will against defendant had been removed, the court overruled the challenge. In the Heidbrink case the juror's mother had been injured by one of defendant's cars some time previous to the trial, and the juror stated that the claim against the company had been "not exactly settled satisfactorily." In the course of further examination he stated more than once that, if the evidence were equally balanced, he would give the plaintiff "the benefit of the doubt." In the Theobald case one of the jurors challenged had himself been injured by a street car some years before the trial. He stated that that fact would influence him in the trial of the case. Among other things he said: "I have a prejudice against railroad companies--against street car companies. In the same case the other challenged juror said: "I have a sort of prejudice against the company, a general prejudice." Upon being asked whether that would influence him in the trial of the case he said: "No, I don't think it would; but still, a person having a prejudice, that would probably unconsciously bias his opinion." Again in answer to a question he said: "Well, as I said before, I have a prejudice against the company to start with." Upon being asked whether he still had this prejudice, he answered: "Still have it."

In the administration of justice it is vital that those who sit in judgment, whether jurors or judges, be free from any prejudice or bias that would in any manner influence them in a decision either upon the facts or the law. Or, as stated by MARSHALL, J., in Theobald v. Transit Co., supra, "The streams of justice should be kept pure and free from prejudice." However, under conditions existing to-day we might frequently find some practical difficulties in the way of applying Lord Mansfield's ideal rule that a "juror should be as white as paper." The test stated by Chief Justice MARSHALL in Burr's case, and which is quoted approvingly in Theobald v. Transit Co., supra, is: "That light impressions which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions, which will close the mind against the testimony that may be offered in the opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him." [See, also, ...