McManama v. United Rys. Co. of St. Louis

• Citation: 158 S.W. 442
• Parties: McMANAMA v. UNITED RYS. CO. OF ST. LOUIS.
• Decision Date: 03 June 1913
• Court: Court of Appeal of Missouri (US)

158 S.W. 442

McMANAMA v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

Rehearing Denied July 5, 1913.

1. JURY (§ 97) — COMPETENCY OF JUROR — BIAS.

In the administration of justice it is vital that those who sit in judgment, whether jurors or judges, be free from prejudice or bias, for the streams of justice should be kept pure and free from prejudice; consequently the prejudice of a juror is ground for challenge.

2. JURY (§ 97) — PREJUDICE — GROUNDS FOR CHALLENGE.

A challenge to a juror for prejudice was properly overruled, where it appeared his only reason for prejudice against the defendant street railway company was that he felt that it should have paid the doctor's bills incurred by his two daughters, who were injured upon its line, although he stated that it had made a fair settlement with the girls, and that he could try the case fairly.

3. APPEAL AND ERROR (§ 1024) — REVIEW — DETERMINATION OF TRIAL COURT.

The determination of the trial court as to the competency of jurors should not be disturbed on appeal, unless clearly against the evidence.

4. PLEADING (§ 426) — DEFECTS — WAIVER.

By answering over a defendant waives the improper overruling of its motions to compel an election and to require the defendant to make the pleadings more definite and certain.

5. TRIAL (§ 252) — INSTRUCTION — APPLICABILITY TO EVIDENCE.

In an action for personal injuries it is improper to charge the jury to make any allowance for permanent injury, where the evidence does not disclose the plaintiff's injuries will be permanent.

6. APPEAL AND ERROR (§ 1068) — REVIEW — HARMLESS ERROR.

In view of Rev. St. 1909, §§ 1850, 2081, forbidding the appellate court to reverse a judgment unless it believes that error was committed materially affecting the merits, and requiring the court to disregard any errors not substantially affecting the rights of the adverse party, the giving in a personal injury action of an instruction authorizing the jury in estimating plaintiff's damages to consider whether they were permanent, is not reversible error, where it appeared that the injuries had existed for more than a year, and would continue to exist at least for a long time, and the award of damages was not excessive.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Milton G. McManama against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest and G. T. Priest, all of St. Louis, for appellant. Jones, Hocker, Hawes & Angert, of St. Louis (H. A. Loevy and Vincent L. Boisaubin, both of St. Louis, of counsel), for respondent.

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 $2,500. 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, constitutes 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, Billmeyer v Transit Co., 108 Mo. App. 6, 82 S. W. 536.

In the case before us can it be said that the examination of this juror showed the existence of any strong and deep impressions which would close his mind against the testimony, or of a bias or prejudice which would influence his judgment? It appears that he had a feeling (he said a little feeling) of dislike toward the defendant — "that the company didn't do just right in not paying that doctor's bill." He testified, however, that this would have no influence with him in arriving at a verdict...